Colagrande v Kim [2022] FCA
A recent Federal Court case shows that it is possible to identify and sue authors of ‘anonymous’ online reviews and there are legal processes which can be used to bring those who would seek to damage another’s reputation and professional standing to justice.
This was a defamation case arising from an anonymous online review of Dr Colagrande, a prominent cosmetic surgeon practicing on the Gold Coast.
In February 2017, Dr Colagrande was convicted of indecent assault of a patient. In June 2018 the conviction was quashed by the Queensland Court of Appeal and the prosecution entered a formal abandonment of the charge shortly after.
In early 2019, Dr Colagrande saw that in December 2018 an unidentified person had posted a review on RateMD as follows: ‘after what he did to me, I can’t believe he’s still practicing’ and referred to an article about Dr Colagrande being found guilty of indecent assault.
Dr Colagrande assumed the former patient who had falsely accused him of sexual assault had made the post. He was greatly concerned about the negative review which misrepresented him as a sexual predator. The review brought back ‘the horror’ of his criminal trial and he became ‘an emotional wreck’.
Dr Colagrande contacted RateMD which refused to remove the post. He instructed lawyers in California and ultimately RateMD released the IP address under subpoena. Dr Colagrande then retained Australian lawyers to identify the account holder of the IP address. Under court order, Telstra provided the information that the account holders were Mr Kim and Mrs Min (respondents in the Federal Court).
Mr Kim also practiced as a cosmetic surgeon and his main office was located on the Gold Coast. He was aware of Dr Colagrande. The respondents denied publishing the false review, yet neither gave evidence at the hearing.
A cyber security expert gave unchallenged evidence that the review was posted using a Samsung mobile, the respondents were the account holders and the account was connected to their home address
The Court found the respondents had motive to damage Dr Colagrande’s reputation, that Mr Kim perceived Dr Colagrande to be a competitor and both respondents acted in concert in uploading the false review.
8 witnesses gave evidence that they were considering using Dr Colagrande’s services, but upon reading the review decided against it.
The Court found the false review was defamatory and it ‘inflicted a profound new trauma’ on Dr Colagrande, it was posted by a doctor wishing to do Dr Colagrande professional harm. The Court noted the respondents initially pleaded then abandoned, a plea of bad reputation.
The Court stated that a ‘substantial… damages…’ should be awarded. General damages of $420,000 and special damages of $31,511 were awarded and permanent injunctions restraining the respondents from publishing the false review or any matter to the same effect were granted.
This was not an easy and no doubt expensive process, but it shows that authors of false ‘anonymous’ reviews can be exposed.
If you have any queries, please contact Dominic Lay on 9612 7233
