May 23, 2022

After discovering who originated a fake customer review intended to deter others from choosing your business, how do you prove the extent of reputational harm and how it has affected your livelihood?

Consider the case of Dr Ces Colagrande – a 20-year Australian trained doctor who trained in plastic surgery in Cambridge and has specialist qualifications in cosmetic surgery – and his medical practice at Mermaid Beach.

The clinic attracted patients from across Australia and overseas in part from the excellent reviews he had received from patients via RateMDs, the largest online rating sites for medical practitioners to which members of the public can post reviews of their experience.

In February 2017 a conviction – which was quashed on appeal a year later – was recorded against the surgeon for indecent assault of a patient.

The successful appeal did not deter an unidentified person posting a review on Rate MDs in December 2018 stating: “After what he did to me, I can’t believe he’s still practicing. Just read the article.”.

The review also gave the doctor 1 out of 5 for each of staff, punctuality, helpfulness, and knowledge.

Dr Ces assumed it had been posted by the former patient who had made the assault allegation. It took him back to “relive the horror” of the criminal trial and conviction making him fear “the patient was not finished in destroying [his] life and reputation”.

He could not sleep and took time off work and was diagnosed with PTSD in June 2019.

When RateMDs refused to take the post down, he engaged attorneys in California to file a lawsuit there and when armed with the IP address – that was eventually divulged – Dr Ces retained lawyers in Australia to compel Telstra to identify the customer to whom it had allocated that address.

Under a Federal Court order made in November 2020, Telstra disclosed that the customers were Min Sik Kim and Anna Min and that the account was linked to “Dr Mitchell Kim”, another Mermaid Beach cosmetic surgeon.

Relieved his efforts had finally unearthed a culprit, he was “sick to the bone” on discovering it had been a colleague who had created the false review to destroy his practice.

His lawyers promptly issued a Concerns Notice to the pair – the response to which was a denial of all involvement in the slur – followed by a defamation lawsuit filed in March 2021.

Dr Kim and his wife persisted with their denial of association with the false review; claimed they had no motive to damage Dr Colagrande’s reputation; and alleged any patients who cancelled their surgery with him had done so regardless of the review.

The trial occurred over two days before Justice Jane Jagot in the Federal Court in Brisbane in March.

Dr Ces relied on evidence from Dr Dennis Desmond – a former FBI cyber security expert who lectures at the University of the Sunshine Coast – to interpret the Telstra data.

He was able to demonstrate that the fake review had been posted on 12 December 2018 at 09:18 AEST using a Samsung mobile device over a Telstra account for which Dr Kim and his wife were the account holders.

Justice Jagot was unimpressed by the contention from Dr Kim – a RateMDs user whose profile recorded him as a “Plastic/Cosmetic Surgeon. Physician” – that his practice was not a competitor to that of Dr Ces.

No explanation was offered as to why neither Dr Kim nor his wife gave evidence, allowing the court to draw the rule they had jointly participated in the publication of the false review to harm their competitor.

“I consider it proved that the first and second respondents acted in concert to upload the post containing the false review” because they wished to harm the reputation of a perceived commercial competitor.

To reduce his exposure to damages, Dr Kim attempted to undermine evidence from patients who had cancelled their surgery with his rival by suggesting they had read other articles – ie the news article of the 2017 conviction – or that they had only read the Rate MDs review after having been asked by Dr Ces about their availability to give evidence in court.

All but one of the many witnesses called insisted their decision had been due to the “scathing” review – the only one-star review of the surgeon – on Rate MDs.

As one witness explained concerning his and his partner’s thinking: “Mate, if someone is going to leave a bad review – it doesn’t get any worse than that when you’re a doctor.”

Not to be deterred, Dr Kim submitted that it “strains credulity” that a person could pass over Google search results of news articles about a conviction of sexual assault “and click instead on a website such as RateMDs, to read reviews written by unknown strangers”.

Not so, said the judge.

“It does not strain credulity to accept that people contemplating having surgery with a doctor or contemplating employing a doctor might be more interested in what other patients say about the doctor than news articles. It was clear that some of these witnesses routinely search the internet for patient reviews of their contemplated doctor, including on the RateMDs website, even if they have previously been happy with that doctor. This is not surprising, let alone incredible”.

The court concluded that Dr Colagrande was seriously re-traumatised by the false review and that his hurt and harm were aggravated by his competitor’s malice in the posting knowing the conviction against him had been quashed.

His vulnerability in no way exculpated them for the extent of his re-lived hurt given their conduct aimed to destroy his character, his reputation, and his livelihood.

The surgeon’s profile page received 70,000 to 180,000 views per month from December 2020 to June 2021.

Noting that the damages cap for harm and reputational loss was $432,500 Justice Jagot ordered the pair pay Dr Ces $420k plus a further $31k for expenses incurred in identifying the source of the malicious publication.

Dr Ces further submitted an injunction was necessary to prevent the pair from re-posting the false review because of their reluctance to remove the anonymous post until September 2021; refusal to admit their wrongdoing or express remorse; and the scandalous allegations in their Defence that were not abandoned until March 2022.

Her Honour agreed. “There is a real risk of the respondents publishing the false review or matter to the same effect unless restrained”.

Dr Kim and his wife were also ordered to pay the claimant’s legal costs of the Federal Court action and interest on damages.

Colagrande v Kim [2022] FCA 409 Jagot J, 21 April 2022

Categories: defamation

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