The Federal Court of Australia recently awarded a Gold Coast cosmetic surgeon more than $450,000, plus costs, for an anonymous post on the RateMDs website. Permanent injunctions were also ordered.
RATEMDs describes itself as the original and largest Doctor rating site since 2004 with over 40 million visits every year. Members of the public can post entries relating to doctors on the RateMDs website.
Dr Colagrande, when checking his profile on the RateMDs website, saw that an unidentified person had posted a review falsely accusing him of sexual assault.
Years earlier, Dr Colagrande was convicted of indecent assault of a patient, a charge to which he had pleaded not guilty. The Queensland Court of Appeal quashed that conviction. The prosecution then abandoned the charge. Dr Colagrande assumed that it was this patient who had anonymously posted this review.
Release of information
Dr Colagrande contacted RateMDs, who refused to remove the post. By force of a subpoena, RateMDs released the IP address of the person who posted the review, and then by force of Court orders, Telstra released the account holder information for the IP address revealing them to be Mr Min Sik Kim and Mrs Anna Min. A google search of Min Sik Kim linked to a Dr Mitchell Kim, who was a Gold Coast cosmetic surgeon just like Dr Colagrande.
Dr Colagrande then commenced defamation proceedings against Mr Kim and Mrs Min, who filed a defence denying they published the false review, but neither of whom gave evidence at the trial hearing. Expert evidence was given to the effect that the review was posted using a Samsung mobile device over a Telstra account for which the respondents were the account holders. The Court held that it was proved that the first and second respondents acted in concert to upload the post containing the false review to the RateMDs website. It was also inferred by the Court that they did so because the first respondent wished to harm the reputation of Dr Colagrande as a perceived commercial competitor of the first respondent and the second respondent wished to assist the first respondent to achieve that malicious purpose, knowing that the conviction against Dr Colagrande had been quashed.
There was no dispute that the false review was defamatory. In addition to harming Dr Colagrande’s professional reputation, the Court found that the publication of the false accusations caused Dr Colagrande to be profoundly re-traumatised. He had been seriously traumatised by the earlier events of his criminal conviction and getting it quashed, but by the time that the false review was posted he was getting his life back on track. The discovery of the false review caused him to be re-traumatised with a diagnosis of post-traumatic stress disorder. Of course, Dr Colagrande could not recover from the respondents for any hurt or harm done to him by the previous publications as previously published about his charge and conviction.
Award of damages
The Court was satisfied that a substantial award of damages was justified, and awarded $420,000 for non-economic loss, including aggravated damages, for Dr Colagrande’s hurt feelings, damage to his reputation, the need for vindication of his reputation and the circumstances of the aggravation. He was also awarded $31,511.29 as special damages on account of the money he had to spend to ascertain the underlying facts which lead inexorably to the inference that the respondents posted the false review, including his costs incurred extracting relevant information from RateMDs and Telstra
Access to the IP address and account holder information of a person who posts an anonymous defamatory review on a website has become easier in recent times with more and more such inquiries being made.
Also, with the recent High Court decision of ‘Voller’ (Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller  HCA 27) clarifying the meaning of publication under defamation laws, finding that a website host (like Facebook) is also the publisher of a post or comment uploaded by a user – media, telecommunications and review website companies are now being more cooperative with such inquiries.
If you need advice, assistance or representation in relation to defamation law matters – to pursue a claim for defamation or where you may have received a Concerns Notice or are named as a respondent or other party in Court proceedings or have received an information request, please contact us so we can help.
Stone Group Lawyers are experts in this very complex area of the law.
Berren Hamilton is a Special Counsel (Litigation) at Stone Group Lawyers. He is an Accredited Specialist in Commercial Litigation with the Queensland Law Society. He was admitted to practise in Queensland in 2001.