Can Qualified Privilege be a Defence to an otherwise defamatory Google Review?

Introduction

In the case of Srecko and David Lorbek v Peter King [2022] VSC 218, the Court of Appeal was asked to consider whether an otherwise defamatory Google Review was subject to the defence of qualified privilege. This case is important given that people tend to post a Google review when they are disgruntled, rather than when they are happy with the service or goods provided.  

Summary of the facts

The facts of this case were simple:

• Lorbek Luxury Cars (“Lorbek”) sells luxury second-hand motor vehicles.
• On 3 July 2016, Peter King (“King”) purchased a 2011 Porsche Panamera with a road worthy certificate for $159,726.  The purchase price included a sum of $4,950 that was allocated to a 5-year warranty under the contract of sale.
• Shortly after purchasing the vehicle, King drove into a pothole and damaged the car.
• At the time, he found the car was still under factory warranty and requested a refund of the platinum warranty. It was also discovered during the course of repairs that the car was unsafe and not roadworthy due to the state of the brakes, tyres and suspension.
• King, of course, sought to have Lorbek cover the costs of having the car made roadworthy.
• King was not happy with Lorbek’s response and he posted 13 online posts detailing his adverse perception of Lorbek, its owner and the salesperson, and the car they sold him. This included a post on “Law Answers” and three different Google Reviews. These reviews were the basis of the proceeding brought against him.
• The online posts contained similar content and stated: he was sold an unroadworthy car; the roadworthy certificate was fraudulent; the salesperson was a liar; Lorbek acted dishonestly and with intent to gain financial advantage; and the business owner deserved no respect.
• King was sued for defamation by Lorbek's owner and salesman. King defended the claim on the basis of qualified legal privilege, fair comment, honest opinion, "justification", and contextual truth.

The Court, at first instance, found that the posts were defamatory and conveyed some of the imputations pleaded; and then had to consider whether any of the possible legal defences were made out. All the defences, bar qualified privilege, were found to not be established.  Having established the qualified privilege defence, no damages were awarded.

Lorbek appealed. The focus of the appeal was the Lorbek appealed. The focus of the appeal was the defence of qualified privilege under s 30 of the Defamation Act 2005 (Vic) which requires the following be proved: of qualified privilege under s 30 of the Defamation Act 2005 (Vic) which requires the following be proved:

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that—

a) the recipient has an interest or apparent interest in having information on some subject; and

b) giving to the recipient information on that subject; and

c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

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In this case, the Court, at first instance, carefully considered the Google Reviews and the process a third party would go through to access them. In doing so, Justice McDonald concluded that the posts would have come to the attention of a small number of potential customers of Lorbek, described as those who were specifically interested in reading the reviews of people who were dissatisfied with their experience of purchasing a vehicle from Lorbek. His Honour reasoned that this group had a specific interest in the subject matter and, as such, qualified privilege could apply. The Court of Appeal concurred with this finding.

Were the posts 'reasonable in the circumstances'?

Having established that the defence applied, the trial Judge then went on to consider whether the posts were “reasonable in the circumstances”.  In this case and before posting, King made detailed enquiries and undertook extensive investigations to understand how he had purchased a vehicle that was not roadworthy. Having done so, it was easy for the Court to find that King had a genuine and reasonably held belief that Lorbek knew the vehicle was unroadworthy when he purchased it, and therefore his posts were defensible. His Honour stated that what King said followed "logically, fairly and reasonably" from the information he had obtained and what he posted "did not exceed what was reasonably required in the circumstances". The Court of Appeal also concurred with this finding.

Were the posts motivated by malice?

Lastly, the trial Judge had to consider whether the posts were published with malice, which would defeat the defence of qualified privilege. Malice is “any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff". The Plaintiff must prove malice and it is a high onus. In this case, the trial judge found the Plaintiff could not establish that the dominant purpose of the posts was to injure their reputations and thus malice was not established.  Again, the Court of Appeal concurred.

The Court of Appeal, having concurred with these three findings, therefore upheld the trial Judge’s decision, and refused leave to appeal.

How Sharrock Pitman Legal can help

Irrespective of the purchase price, a new purchase that does not function as a reasonable customer would expect it should, makes for a disappointing situation. Before voicing your anger on social media, seek legal advice as to your rights as a customer and, further, the risks that can flow from venting your anger in the public domain.

Our Disputes & Litigation team can provide advice on your rights as a purchaser and consumer and guide you to a cost-effective and satisfactory resolution. Contact us on 1300 205 506 or email litigation@sharrockpitman.com.au.

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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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