What is defamation? Defamation is damage being done to the reputation of the person. Defamation can harm a person’s standing, prestige, reliability and most importantly, can hurt him commercially. Defamation can be classified as (a) slander: when the defamation is in speech form and (b) libel: when defamation is in written or printed form such as in form of article, picture etc. In the recent times the defamation suites being filed by healthcare practitioners are rising steeply. This is majorly due to increased usage of social media, blogs, videos and emails; which has immense power of spreading information like wildfire. One of the reasons cited for increase in defamation cases is readily available healthcare information on Dr Google. Many times this information is from unscientific, irrational and unreliable resources. The patients criticize the doctor on the basis of their little knowledge about the treatment. Also many healthcare practitioners believe that few negative review online do not justify the authenticity and credibility of their good work. This leads to dent in the image of healthcare practitioner and ultimately defamation suits I. R. Freckelton, 2020().
The law concerning defamation tries to create a balance between freedom of speech and protection of individual’s reputation. The courts have a very pivotal role to play in such situations as they have to protect fundamental right of freedom to speech as well guarantee dignity and reputation to a person which is a basic societal right. The freedom of speech comes with reasonable restriction which includes protection of a person’s reputation. In order to prove defamation, certain key elements must be proved such as: (i) The statement made about the other person must be false (ii) The statement must be issued to a person/party other than person being defamed. (iii) The person being defamed must have suffered some kind of damage e.g. mental torture or monetary losses. (iv)The person making defamatory statement must have done it deliberately while knowing that it is falseMoutos, Verma, & Phelps, 2020().
Australia is being called defamation capital due to phenomenal rise in the defamation cases in the country. The defamation cases are governed by Defamation Act, 2005. There was an increased need felt for more advanced and comprehensive law as there is a significant rise in internet publications and social media platforms since then. This was followed by 18 month long deliberations, discussions and public consultations steered by Department of Communities and Justice. In August 2020 New South Wales became the first Australian state to pass Defamation Amendment Bill 2020 (NSW). The others states are also planning to amend the defamation law to address the challenges of current times. The amendments made in the defamation law are as follows:
(a) Establishment of serious harm: The plaintiff will now have to prove that serious harm has been caused to his reputation or have to prove the financial losses incurred, if any. This provision has been made to keep trivial cases out of court.
(b) Mandatory Concerns Notice: The plaintiff will now have to compulsorily issue concerns notice to the defendant before starting the litigation. This provision is made to encourage out of court settlement.
(c) Single Publication rule: This clause amends the Limitation Act of 1969. The limitation act defines the limitation period of defamation to be one year from the date of the publication. In case of online publications the date of publication will be considered as date on which the matter was first uploaded and not when the material was last downloaded or accessed.
(d) Clarification on cap: This amends the section 35 of 2005 Defamation Act and establishes that maximum amount that can be awarded for non economic losses sets a range instead of a cap. In the case of most serious damages the highest value in the range can be awarded based on the discretion of the courts.
(e) Defense for publications in scientific and academic journals: In this case defendant has to prove that the article has been published in scientific journal, has scientific or academic content and is peer reviewed before publication.
(f) Public Interest defense: This amendment is of particular concern to media and journalists who can freely publish information if it lies in the domain of public interest.
Council of Attorneys-General (CAG) has now decided to focus on stage 2 of the reforms which will deal with responsibility of digital platforms for publishing defamatory material. Currently, the Broadcasting Services Act 1992 (BSA) deals with Internet Service Providers (ISP) and Internet Content Hosts (ICH). It provides immunity to ISP and ICH in case they are not aware about the nature of content published. But once an ICH and ISP is complained about the defamatory material it must either take down or deny the access to defamatory material.
In three landmark cases, namely Al Muderis v Duncan, O’Neill v Fairfax Media Publications and Tavakoli v Imisides in New South Wales the Supreme Court sided with the doctors and awarded them the cost of the damage done to their reputation and business I. Freckelton & Popa, 2019(). The Australian court recently ordered Google to reveal the identity of a person who anonymously posted defamatory reviews about a dentist in Melbourne which not only hurt his feelings but also had a significant economic impact on his practice. Nowadays as a preemptive measure, many doctors make their patients sign an agreement that gives the healthcare practitioners the copyright in case a patient posts something defamatory. This makes it easier to take down a negative review from an online rating platform.
The public reception on lawsuits filed by healthcare practitioners is mixed. A section of people believe that majority of the reviews are not damaging to the practitioner’s reputation except a very few when the patients accuse the doctor of serious wrongdoing. This sect believes that healthcare practitioners must not take every negative review as defamation rather it should be seen as constructive criticism as well as an opportunity to rectify the shortcomings pointedRonquillo & Varacallo, 2020(). Further the public may take the defamation case filed by healthcare practitioner as an attempt to intimidate the patient to withdraw the negative review. It can create all the more damage to the reputation by bringing media attention to the case. One such case is of McKee v. Laurion (2013). Mr Laurion was the son of patient that neurologist Dr Mckee was treating. Mr Laurion posted many negative reviews on various online platforms regarding doctor’s rude behavior and several inappropriate statements that doctor made during the treatment of his father. Dr Mckee filled a defamation suit against Mr Laurion, which was summarily rejected by the court stating that comments made by patient do not qualify for defamation. This case was widely covered by media. It brought more sympathy towards the patient and even more damage to doctor’s public image. They believe that best way to avoid negative reviews is to be empathetic, caring and respectful towards patients. The other sect believes that healthcare practitioners are right on their part to file for defamation in the cases when the damage done to their dignity, hard work and reputation is too big to ignore. Many of physician review websites allow anonymous reviews which can act as a platform to allow competitors, professional rivals or mischievous elements to post detrimental commentsJerrold, 2016(). Thus as we conclude that public opinion is divided but still majority of the people believe that decision to file defamation against a patient must be taken objectively by assessing the severity of allegations levied.
The Peter Parker’s (Spiderman) principle of “With great power comes great responsibility” very rightly applies to internet based communication and immense power that it has placed in the hands of user. The legal experts emphasize that healthcare practitioners face the most trouble fighting defamation cases and saving their hard earned reputation. Various patient confidentiality laws have privacy clause for safeguarding the identity of patient which prevents the doctors from openly rebutting the patient’s claim of a malpractice by a doctor. Legal egalitarianism means equality before law i.e. particular person/group’s rights are not superior or inferior to the other person/groups legal rights. Everybody is equal before law. The patient’s right to free speech must not crush the practitioner’s right to have dignified professional life. The principle of equality before law provides full rights to healthcare practitioners to refute all the malicious claims in the court of law. At the same time it provides patients the right to express their opinion about the treatment they have received. Doctors must keep lawsuit as the last resort but if the damages too large to be ignored defamation can be filed. Moreover, the reviews about bedside manners, long waiting hours, non cooperative staff etc must be seen as red flag and an opportunity to improve considering that healthcare is a public service profession. Most importantly, there is need to educate people about what is defamatory and what is not. One must understand that there is a difference between constructively criticizing a person’s action and defamation. That delicate boundary must never be crossed. Thus next year will certainly see Australian laws becoming updated with fast growing digital space. The healthcare practitioners must make a careful differentiation between opinion/criticism and defamation to help them assess the pros and cons of filling a defamation suit. On the other hand the clear understanding of the fact that they are in public profession and addressing the concern of their patients is their primary responsibility.
Freckelton, I., & Popa, T. (2019). Doctors, Defamation and Damages: Medical Practitioners Fighting Back. J Law Med, 27(1), 20-28. 2. Freckelton, I. R. (2020). Internet Disruptions in the Doctor-Patient Relationship. Med Law Rev, 28(3), 502-525. doi: 10.1093/medlaw/fwaa0085838319 [pii] 3. Jerrold, L. (2016). Loose lips. Am J Orthod Dentofacial Orthop, 150(1), 198-199. doi: 10.1016/j.ajodo.2016.04.004 S0889-5406(16)30064-6 [pii] 4. Moutos, C. P., Verma, K., & Phelps, J. Y. (2020). Negative Patient Reviews and Online Defamation: A Guide for the Obstetrician-Gynecologist. Obstet Gynecol, 136(6), 1221-1226. doi: 10.1097/AOG.0000000000004150 5. Ronquillo, Y., & Varacallo, M. (2020). Defamation. doi: NBK531472 [bookaccession].