Skip to main content

NEVER Read the Comments!

The Federal Court this week delivered their judgement on Australian Competition and Consumer Commission v Service Seeking Pty Ltd [2020] FCA 1040 going all out by handing out whopping fines, legal costs orders and ordering Service Seeking Pty Ltd to establish a, undoubtedly expensive, compliance system to be monitored by the Australian Competition and Consumer Commission (ACCC). 


What did they do that was so bad? 

According to the Federal Court of Australia, they created a system in which businesses could write their own customer reviews. 

With a rating system less defined than what constitutes a 5-star rating in an Uber trip, businesses could write a review, assign a star rating and send it off to their customer for approval. If the customer didn’t respond or even open the email containing the review, then the review was automatically published online after a set period. By estimates of the Court, approximately 80% of the reviews published on the website for the period that this scheme was in place were written via this method. 

The parties agreed that by publishing the reviews on the website, Service Seeking was making a false or misleading representation themselves as well as the businesses that published them. Therefore, they were culpable for allowing these reviews to exist on their platform as well as playing a role in the creation of the reviews as well. 

Regulatory Perspective

From a regulatory perspective, this ruling is less than surprising and is reflective of the age that we are living in with respect to online commentary. There are more and more cases every year for defamation regarding online reviews and the push to de-anonymise the internet has arisen with these. If everyone is to be responsible for what they say online, any comment which is even inferred to be from a person will need to have that person’s consent. That way, a person remains responsible for what they post and the website owes a duty to help identify that person.

This was proven in Kabbabe v Google LLC [2020] FCA 126, where Google was ordered to provide the user information of someone who had left a false negative review of a dental surgeon. A recent South Australian case, Cheng v Lok [2020] SASC 14 awarded a lawyer $750,000 in damages for a fake review.

It may even be extended to holding the group admins on Facebook pages responsible for the defamatory posts of members of the group. 

Both of the above cases highlight the uncompromising nature that the courts are taking with respect to online commentary which is, you are responsible for the content that you post online and if that content is false or misleading or defamatory, then you are responsible for that as well. 

Comments

Popular posts from this blog

Cosplaying Fast and Loose: Intellectual Property Theft or Innovation

In light of the ongoing pandemic effects, Japan has decided to take on the real issues and has announced the reform of how copyright is looked at concerning cosplaying. Cosplaying is a way of dressing up in costume as some of the characters from your favorite tv show/anime and while dressing up in costume isn't likely to cause you to receive a copyright notice, being paid to do so most likely will. This kind of thing can definitely spoil a children's birthday party when one of the six-year-olds turns out to be an undercover police officer working in the intellectual property squad, but nevertheless, copyright protections are genuine and are what gives a company incentive to come up with a new character in the first place.  So, the Japanese government have come out and said that they would undertake a review of the situation and release a brochure of approved ways to Cosplay without infringing copyright moving forward. But as history is always doomed to repeat itself, let's

Misappropriation of likeness, it's in the game

Misappropriation of likeness, it's in the game With the recent announcement that EA will be venturing back into the world of college sports for one of their upcoming games. It is essential to look at the reasons for its (over a decade-long) hiatus from making college sports games. Several high-profile cases took down a very profitable area of sports gaming almost ten years ago, over a simple but crucial element to the games, the players.  Privacy and personality laws in the United States is an emerging area of law founded on the basis that is based in tort law. It deals with the ideas that a person has rights: 1. To be left alone; 2. To not have public disclosure of private facts; 3. To not be depicted in a false light; and 4. To not have your name and likeness misappropriated.  On these critical tenets, personality laws have become increasingly more prevalent as, due to advances in technologies, it is becoming easier for one's likeness to be copied and distributed.  Th

You can take the bread company out of Hawaii, but you can't take Hawaii out of the bread company.

You can take the bread company out of Hawaii, but you can't take Hawaii out of the bread company. What do you do when your favourite company that makes your favourite type of bread makes it bread outside of your favourite state? You take them to court, or at least that is what one man has done.  A man in New York has filed a class action against bread maker, King's Hawaiian over the sweet rolls alleging that the company misled him into believing that the rolls are actually made in Hawaii. Robert Galinsky is pursuing a class-action lawsuit against the company claiming unjust enrichment, negligent misrepresentation, and fraud. King's Hawaiian packaging Galinsky claims that Hawaiian Rolls by itself "does not denote a roll made in Hawaii any more than a 'Moon Pie' can claim to have been baked on the moon." But the company using the original location of its factory, 'Hilo, Hawaii' in its packaging is misleading to customers.  If Galinsky can convince th