Protecting doctors from online ‘trolls’ and other reputational risks

Doctors and other health professionals are, regrettably, often the victims of online abuse – including by Google reviews, Facebook posts, and on specialist websites like ‘RateMD’s’.

The purpose of this article is to explain in general terms:

Some of the remedies which doctors have now, in seeking to respond to defamatory online publications, particularly following the High Court’s much-publicised September 2021 decision in Voller.[1]
The potential for some of these remedies to be undermined, if the Commonwealth Government’s ‘Social Media (Anti-Trolling) Bill’ is enacted (although the Bill has been criticised by legal experts since it was released in December last year, it was nonetheless introduced in the lower house on 10 February 2022).
Some possible options for reform, which may better protect doctors from defamatory online publications.

The current state of the law

Where a doctor is defamed online - by a Google review, or on a social media platform like Facebook, or on a website like ‘RateMD’s’ – they usually have several potentially viable remedies.

One option is to pursue the actual author of the defamatory post – for example:

In August 2021, Dr Warwick Nettle[2] – a Plastic Surgeon – was awarded $450,000 in damages after a former patient unleashed “an online tirade” of abuse, criticism and negative reviews about him in 2018. This had included allegations (found to have been false and “entirely unjustified”) that Dr Nettle was “a charlatan” and “a compulsive liar”, that he “routinely caused physical harm to his patients”, and that he had “violated the rights of his patients”.
In June 2019, Dr Kourosh Tavakoli[3] – another Plastic Surgeon – was awarded $530,000 after the defendant (a patient on whom he had operated) posted a Google review which alleged, falsely, that Dr Tavakoli had charged the defendant for a buccal fat procedure that he did not perform and that he had acted “improperly” and “incompetently” in relation to that procedure.
In June 2017, Dr Munjed Al Muderis[4] – an Orthopaedic Surgeon – was awarded $480,000 after being defamed by what was described as a “most vicious and vituperative series of publications”, which included false suggestions that he was “a butcher and a bully” and that he was “a disgraceful surgeon with a reckless disregard for human life”.

Where the actual author of the defamatory post is unknown – because they published anonymously or under a false name – it is possible to seek preliminary discovery orders so as to reveal the author’s real identity. Such orders are frequently made in the Federal Court against Google, for example. Within the medical sphere specifically, Dr Scott Allison (a Cosmetic Surgeon) and Dr Matthew Kabbabe (a Dental Surgeon) have each, within the last two years, successfully sought preliminary discovery orders against Google in order to identify the unknown persons who posted allegedly defamatory Google reviews about them.[5]

Google reviews

A defamatory Google review can be particularly damaging to a doctor’s hard-earned reputation. This is not only because, in the current era of the internet, one of the standard things which a patient would do when looking to choose a doctor is to use Google and look at the doctor’s Google reviews, but also because there is no way for the doctor to know how widely the review may have been spread (the content of, or a link to, the review can be easily forwarded on with a few key-strokes).[6]

Three of the above cases – those involving Dr Allison, Dr Kabbabe, and Dr Tavakoli – related to defamatory Google reviews. So too did the successful claim brought by Dr Allison Dean (a Periodontist, who was awarded $170,000 in July 2021 after being defamed by four Google reviews which were said to have “the flavour of a ‘vendetta’”).[7]

However, rather than pursue the actual author of the Google review (as in the above cases), the victim of a defamatory Google review may also pursue Google itself. In our view, Google is undoubtedly to be regarded as a publisher of, and therefore at least potentially liable for, defamatory Google reviews posted by others. Australian courts have also found, in the Defteros decisions[8], that Google may be regarded as a publisher of third party webpages produced through Google search results (even where the search results are not defamatory by themselves).

Facebook and other social media posts

Last year, the High Court’s decision in Voller (which we discussed here) found that those who administer and maintain Facebook pages may be regarded as ‘publishers’ of any comments made on those pages, even where they are written by others.

The position should be the same in relation to posts on other social media platforms.

Accordingly, a doctor defamed by a social media post can seek relief from:

The actual author of the comment (‘the third party’); and/or
Those who operate the social media page on which the third party comment is posted (‘the page operator’); and/or
Those who provide the social media service (‘the provider’ – e.g. Facebook itself).

Under the current law, therefore, page operators and providers are publishers of third party posts written by others. As such, they are potentially liable for those posts (unless they can avail themselves of a defence – such as, for example, the defence of innocent dissemination under s.32 of the uniform defamation laws or Clause 91 of Schedule 5 to the Broadcasting Services Act 1992 (Cth)).

This creates an incentive for page operators and providers to moderate third party posts, to do so responsibly, and to remove unlawful posts upon request. Within that context, doctors can engage with page operators and providers – there is, in effect, an informal ‘take-down’ process by which doctors can seek to remove unlawful posts by writing to the page operator or provider. Most platforms – including Google and Facebook – have had voluntary take-down systems in place for years.

The Social Media (Anti-Trolling) Bill 2021

In December 2021, and undoubtedly as a reaction to Voller, the Australian Government released an Exposure Draft of its Social Media (Anti-Trolling) Bill (the Bill). The Bill was introduced in the lower house on 10 February 2022.

We have written about that Bill in detail here.

Although the Bill was promoted as offering “some of the strongest powers to tackle online trolls in the world”, the Bill is not really about ‘trolling’ (and does not once use the word ‘troll’ or ‘trolling’, other than in the title).

Rather, it proposes to vary the current defamation laws (but does nothing for those who are ‘trolled’ but not actually defamed).

In particular, the Bill provides that:

Those who administer or maintain social media pages will no longer be regarded as publishers of third party comments posted on those pages (to that extent overturning Voller).
On the other hand, the provider will still be regarded as a publisher. However, there will be a new conditional defence for the provider if it has in place, and complies with, a ‘complaints scheme’ which meets particular ‘prescribed requirements’. The Bill does not oblige a provider to have a complaints scheme, though it aims to incentivise providers to have such a scheme (by making this a precondition of the new defence).

Unfortunately, we do not think the Bill will assist doctors who are defamed on social media platforms, and in fact may reduce the potential legal remedies open to them.

Currently, where a doctor is defamed by, for example, a Facebook post, the cheapest and most efficient means for that doctor to seek to preserve their reputation is usually a written request that the operator of the Facebook page remove the post. As we have said above, the page operator is, under existing law, potentially liable for the third party post, and is therefore incentivised to remove it. By contrast, the Bill would provide page operators with a blanket immunity – regardless of the seriousness of the defamatory post, even after they are put on notice of it, and even if they unreasonably refuse to remove it. If page operators are immunised from all liability, it seems to us significantly less likely that they would: a) moderate or monitor the third party posts on their pages; and b) remove unlawful posts upon request.

Instead of the page operator, the Bill seeks to shift our focus towards the ‘originator’ of the defamatory post (i.e. the third party who wrote and uploaded the post), so as to allow the commencement of defamation proceedings against that person.

Where the identity of this person is unknown, the Bill contemplates that the defamed person may:

Make a complaint to the provider – in which case the provider may (but is not required to) reveal the third party’s contact details (and only if the third party consents to this); and/or
Seek a court order against the provider for the third party’s contact details.

For a doctor who is the victim of a defamatory social media post, however, there seem to be several problems with this:

First, and most fundamentally, although the Bill seeks to allow the victim of a defamatory online post to ‘unmask’, and therefore potentially sue, the person who wrote the post, in the majority of cases this will not be the defamed doctor’s primary objective. Usually, they will (rightly in our view) consider defamation litigation to be a ‘method of last resort’. Rather, they simply want the defamatory post removed as quickly as possible. Yet the Bill would not assist doctors to do this. It does not require the platform to remove defamatory third party posts (except with the consent of the third party). This requirement for consent imposes a new obstacle to the removal of the post – under the existing law, providers will often unilaterally remove defamatory third party posts in order to reduce their own potential liability for those posts.
Secondly, in most cases the defamed doctor will not need to ‘unmask’ the third party. Even where the post is anonymous or published under a fake name, the defamed doctor will usually know the real identity of the third party (often because it is a current or former patient).

In Dr Nettle’s case, for example, the relevant internet posts, publications and reviews concerning Dr Nettle were, for the most part, published anonymously or using false names or monikers. Nonetheless, the Court inferred (at [16]) that the respondent, Ms Cruse, was responsible for all of the relevant publications – including because “some of the false names or monikers [were] fairly thinly disguised variations of Ms Cruse’s name or initials”, as well as because of the substance and timing of some of the publications.

And where the identity of the third party really is unknown, although the Bill would allow the defamed doctor to seek a disclosure order, this was already possible under the existing law (as in the cases involving Dr Allison and Dr Kabbabe, referred to above).

Thirdly, even if the defamed doctor initiates proceedings against the third party, and successfully obtains orders against them, there is still no guarantee either that the existing post will be removed or that an injunction will be issued to restrain future posts. In other words, this still may not achieve the doctor’s main (and potentially only) objective of removing the post.

Accordingly, if the Bill is enacted, there will be some circumstances in which doctors who are defamed by social media posts may be left without any viable remedy whatsoever - that is, they may have no practically effective remedy against the third party (for the reasons just provided), no remedy against the page owner (which is given immunity), and no remedy against the provider (which has the benefit of the new defence).

Moving forward

We do not think the Bill should be enacted.

But our current defamation laws undoubtedly still require some reform, in order to balance the competing rights of doctors and others to protect their reputation, on the one hand, and the rights of patients and others to exercise their freedom of speech, on the other.

‘Stage 1’ of the review of Australia’s Model Defamation Provisions (MDP) was undertaken from early-2019 to mid-2020. This resulted in a first round of amendments to the defamation laws, which were implemented in several (but not all) states and territories from 1 July last year. These amendments were themselves significant for defamed doctors and included, for example, the introduction of a ‘serious harm’ threshold.

‘Stage 2’ of the reform process is still ongoing. One of the focusses of Stage 2 is the question of ‘internet intermediary liability’ for third party publications online. One option might be to introduce a ‘safe harbour’ style defence which would be subject to a complaints notice process (similar to s.5 of the Defamation Act 2013 (UK)). Another would be to empower the Court to make take-down orders (similar to s.13 of the UK Act). Both of those proposals would seem to offer more protection for doctors than our existing laws, and certainly more than the ‘Anti-Trolling’ Bill.

This article was originally published in AMA Victoria's blog, Stethoscope.

Read other items in the Australian Healthcare Brief - May 2022

References

[1] Nationwide News Pty Ltd v Dylan Voller [2021] HCA 27; Fairfax Media Publications Pty Ltd v Dylan Voller [2021] HCA 27; Australian News Channel Pty Ltd v Dylan Voller [2021] HCA 27.

[2] Nettle v Cruse [2021] FCA 935.

[3] Tavakoli v Imisides (No 4) [2019] NSWSC 717, in which Kennedys acted for Dr Tavakoli.

[4] Al Muderis v Duncan (No 3) [2017] NSWSC 726.

[5] Allison v Google LLC [2021] FCA 186; Kabbabe v Google LLC [2020] FCA 126.

[6] See, for example, Parke v Zivkovic & Ors [2021] VCC 41.

[7] Dean v Puleio [2021] VCC 848.

[8] Defteros v Google LLC [2020] VSC 219; Defteros v Google LLC [2021] VSCA 167. However, the High Court of Australia has recently in December 2021 granted special leave for Google to appear against this decision (High Court Bulletin [2021] HCAB 10, 10 December 2021).