Ibrahim v Ye
[2025] VCC 106
•17 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-24-04428
| Murad Ibrahim | Plaintiff |
| v | |
| Rochelle Ruby Ye | Defendant |
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JUDGE: | CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2024 | |
DATE OF JUDGMENT: | 17 February 2025 | |
CASE MAY BE CITED AS: | Ibrahim v Ye | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 106 | |
RULING
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Subject:DEFAMATION
Catchwords: Serious harm element of defamation – reviews on multiple online platforms – reviews using different names – extent of publication – inferences relied on for extent of publication – whether cancelled appointments give rise to an inference of serious harm – whether direct evidence of serious harm to reputation
Legislation Cited: Defamation Act 2005 (Vic)
Civil Procedure Act 2010 (Vic)
Defamation Act 2013 (UK)
Cases Cited:Deeming v Pesutto(No 3) [2024] FCA 1430
Greenwich v Latham [2024] FCA 1050
Loder v Bolton [2020] NSWCA 45
Lorbek v King [2022] VSC 218
Mohammed Amersi v Charlotte Leslie U Ors ([2023] EWHC 1368 (KB)
Newman v Whittington [2022] NSWSC 249
Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192
Randell v McLachlan [2022] NSW DC 506
Scott v Bodley (No 2) [2022] NSWDC 651
Setia v Radio Haanji [2025] VCC 44
Stocker v Stocker [2019] UKSC 17
Stoltenberg v Bolton [2019] NSWCA 71
Wilson v Bauer Media & Anor [2017] VSC 521
Zimmerman v Perkiss [2022] NSWDC 448
Judgment: Judgment for the defendant
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Mukherji | Rosendorff Lawyers |
| For the Defendant | Mr M Awad (solicitor advocate) | M Joseph and Associates |
HER HONOUR:
1This is a trial to determine the serious harm element of the tort of defamation.
2Section 10A of the Defamation Act 2005 makes it an element of a cause of action for defamation that the publication of defamatory matter has caused or is likely to cause serious harm to reputation.
3This amendment was introduced to encourage certain types of claims in defamation to resolve without the need for litigation. In particular, those where damages might be modest and out of proportion to the costs of running a proceeding.[1]
[1] Zimmerman v Perkiss [2022] NSWDC 448 [2] ; Newman v Whittington [2022] NSWSC 249 [30]–[49]
4In this case the parties agreed that the serious harm element should be determined prior to trial.
5The plaintiff, Dr Ibrahim, is a specialist respiratory physician who has operated a medical specialist centre known as Mitcham Rd Consulting Suites (“the business”) in Nunawading Victoria for 13 years. In addition to Dr Ibrahim, a number of other specialists practice at the business. He is involved in all aspects of the business including promotion and online marketing.
6He says in his affidavit that online marketing is “the main way in which [he] advertise[s] and it is the main source of people finding and using the business”[2]. His online presence includes a business profile on Google Reviews, Yelp and Yellow pages.
[2] Plaintiff’s affidavit dated 16 October 2024
7He has a specialist practice which means that patients can only see him on referral, either from a general practitioner or from another specialist.[3] He said that patients are referred directly to him from their doctor. Their treating doctor might make the appointment, or alternatively might give the patient a referral and the patient would ring the business to make an appointment.
[3] Transcript (“T”) 25 Line (“L”) 12
The reviews
8Dr Ibrahim alleges that the defendant, Ms Ye, published 9 reviews on Google reviews, Yellow Pages and Yelp between 3 January 2024 and 26 January 2024. The reviews were published under various names including Ruby, RB, MM, Rori, Rochelle Ruby Ye and Emma R (collectively “the reviews”).
9The reviews are as follows:
On Yelp on 26 January 2024 from “Emma R. Templestowe”
Manal the receptionist (old lady, short brown hair, glasses) puts patients at risk by actively covering up misconduct going on in the clinic. ManaI will report you and make up lies against you if you raise concerns about the integrity and conduct of the clinic because she cares more about the clinic's reputation than the wellbeing of the patients being treated here. Negligent practice, many lawsuits, sexual misconduct.
They also keep reporting bad Google reviews to keep their rating up
10On Google Reviews from “Ruby”
Gross misconduct and disregard for patient wellbeing at Mitcham Rd Consulting Suites experienced firsthand.
11On Yellow Pages from “Rori” on 9 January 2024
Poor Service, Thrive Off Intimidation
many complaints, poorly performed procedures, legal problems throughout the clinic. unsurprising they've lost so many specialists
Recommends this product ✘ No
12On Yellow Pages from “Jul” on 9 January 2024
A Lot Of Questionable Behaviour
will prioritise themselves over patients. search them all up and see that they do not care about the people they're treating. no wonder many doctors have left this clinic.
Recommends this product ✘ No
13On Yellow Pages from “MM”
Gross Misconduct
Gross misconduct and disregard for patient wellbeing in this clinic.
Manal the receptionist (old lady, brown hair, glasses) puts patients at risk by actively covering up misconduct. Manal reported someone who raised concerns about the integrity and conduct of the clinic because she cares more about the clinic’s reputation than the wellbeing of the patients being treated.
14On Google Reviews from “Rochelle Ruby Ye”
Gross misconduct and disregard for patient wellbeing at Micham Rd Consulting Suites experienced firsthand.
Manal the receptionist puts patients at risk by actually covering up misconduct going on in the clinic. Manal will report you and make up lies against you if you raise concerns about the integrity and conduct of the clinic because she cares more about the clinic’s reputation than the wellbeing of the patients being treated here.
15On Google Reviews from “RB”
Gross misconduct and disregard for patient wellbeing at Mitcham Rd Consulting Suites. Manal the receptionist (old lady, short brown hair, glasses) puts patients at risk by actively covering up misconduct going on in the clinic. Manal will report you and make up lies against you if you raise concerns about the integrity and conduct of the clinic because she cares more about the clinic's reputation than the wellbeing of the patients being treated here. Search up her court records.
16A further review on Google Reviews from Rochelle Ruby Ye
Gross misconduct and disregard for patient wellbeing at Mitcham Rd Consulting Suites experienced firsthand.
Manal the receptionist puts patients at risk by actively covering up misconduct going on in the clinic. Manal will report you and make up lies against you if you raise concerns about the integrity and conduct of the clinic because she cares more about the clinic’s reputation than the wellbeing of the patients being treated here
Edit. They keep removing my review, so they’re even being dishonest here and trying to cover up their wrongdoing.
Imputations
17Dr Ibrahim says the reviews convey imputations that he:
(a) solicits or covers up gross misconduct;
(b) has no regard to the well-being or care of their patients;
(c) places patients at risk of harm;
(d) is deceptive and dishonest;
(e) reports patients to authorities if grievances are raised;
(f) has a high rate of staff turnover;
(g) is the subject of legal proceedings or complaints;
(h) does not abide by legal regulations;
(i) has engaged in medical malpractice;
(j) has a large volume of complaints from patients;
(k) engages in intimidation;
(l) engages in illegal or criminal activities including sexual misconduct; and
(m) is negligent in providing medical care.
Imputations not pleaded for each publication
18There is a fundamental problem with the pleading in this matter. It does not separately identify what imputations are said to arise from each publication.
19Although the reviews are similar, they are not identical. A plaintiff is required to plead the imputations conveyed by each matter complained of. It is not for a defendant or the court to try to determine which of the pleaded imputations are said to arise from each publication. This is important because, amongst other things:
(a) a defendant might dispute publication of some of the matters complained of;
(b) the matters complained of might convey different imputations;
(c) the matters complained of might be published across multiple platforms, with quite different audiences; and
(d) an assessment of serious harm requires an analysis of both the inherent tendency of the words and the extent of publication;
(e) if serious harm must be established for each publication, identifying the imputations that arise from each publication is necessary to establish serious harm.
20This defect in the pleading was not raised by the defendant. Had it been raised it is likely the plaintiff would have been granted leave to amend his pleading to correctly plead the imputations said to be conveyed by each publication. Had the plaintiff corrected his pleading the defendant would have had an opportunity to put on evidence and make submissions about the extent of each publication and the inherent tendency of the words of each publication. Both parties would also have made submissions about whether serious harm must be proved for each publication.
21Had I formed a different view about serious harm I would have provided the plaintiff an opportunity to amend his pleading and the defendant an opportunity to call evidence and make submissions on the amended pleading.
22However, Dr Ibrahim has not persuaded me that he has suffered serious harm to his reputation from all the imputations arising from all the publications. Therefore, pursuant to my obligations under the Civil Procedure Act to ensure the timely and cost-effective disposition of the real issues in dispute, I considered there was no utility to the plaintiff amending his pleading. If the plaintiff cannot establish serious harm to reputation caused by the combined imputations, he is not going to be able to establish serious harm from a subset of the imputations.
Whether multiple publications can be relied on to establish serious harm
23In the case of Mohammed Amersi v Charlotte Leslie U Ors ([2023] EWHC 1368 (KB)) the Court found that s1 of the Defamation Act 2013 (“the UK Act”) required a claimant prove the publication of each publication had caused serious harm to reputation. The UK Act sets out that a statement is not defamatory unless it has caused or is likely to cause serious harm to the claimant’s reputation. Necessarily the harm must flow from each publication, or the publication itself is not defamatory.
24The Australian legislation, by comparison, sets out that it is an element of the tort that “the publication of defamatory matter about a person has caused or is likely to cause serious harm to the reputation of the person”. The legislation does not refer to “a” defamatory matter and this leaves open the question of whether “the publication of defamatory matter” could include multiple publications. This in turn raises the prospect that a plaintiff could rely on a number of publications by the same defendant to establish serious harm.
25Whether a plaintiff can rely on a number of publications to establish serious harm might depend on the circumstances of each case.
26I do not need to resolve this issue as it does not arise in this case. For the reasons below, Dr Ibrahim has not established serious harm to reputation from all of the publications.
The test for serious harm
27In Peros v Nationwide News Pty Ltd & Ors[4] the court considered the following circumstances that may be relevant to the serious harm element:
(a) The gravity of the defamation;
(b) The extent of publication;
(c) By whom the matter was published;
(d) The identity of the recipients; and
(e) The state of the claimant’s reputation prior to the publication.
[4] Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192
28His Honour Justice Applegarth, noted that serious harm is not presumed and requires proof of actual harm to reputation by direct evidence, or by inference, or both.
29To prove serious harm by inference, or almost exclusively by inference, the inference must be more compelling than competing inferences that are reasonably open on the evidence[5].
[5] Ibid at 416
30In Scott v Bodley[6] the plaintiff failed to establish serious harm caused by a Google review which alleged that he was an incompetent, dishonest and unprofessional painter. Scott alleged that as a result of the review he had seen a significant drop in the number of enquiries he received for painting work and had consequently suffered a loss of profit, loss of opportunity and loss of jobs. Her Honour Judge Gibson found that the evidence relied on in support of the allegations of loss was inadequate and inconsistent. The limited information provided could not form the basis of the inference that the plaintiff suffered any loss of business. Gibson J was not persuaded that the mere fact that the material had been posted on the internet enlivened an inference that it had been read by anyone and that mere assertions will not suffice. Serious harm was not made out.
[6] (No 2) [2022] NSWDC 651
31A number of authorities have considered the way in which online publications might differ from other forms of publication. The way in which online publications are consumed very much depends on the platform. On a Facebook page with a great deal of engagement and frequent posts and comments, any individual post or comment might very quickly be replaced in the “feed”. Posts on Instagram and other social media platforms might be supplanted within hours if not minutes. Reviews on an extremely popular or busy Google Profile page can be quickly “buried” in the thread as they are replaced by more recent reviews.[7] On a Google Profile page such as Mitcham Rd Consulting Suites where there are only a handful of reviews, a negative review can remain readily accessible for years.
[7] Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at 56, Lorbek v King [2022] VSC 218 at 68-69
32However, the nature of an online review is also different from a publication in a scholarly journal, or even a mainstream newspaper. A publication on social media is likely to be read in an “informal manner”[8] by “a new class of reader”[9]. “The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read”.[10] Readers do not expect the reviewer to be an expert. Google users know to read reviews with caution and to expect a range of views and be unsurprised if there are unflattering reviews. As Judge Gibson noted “unflattering reviews appear on many if not most business websites”.[11]
[8] Randell v McLachlan [2022] NSW DC 506 at 18
[9] Stocker v Stocker [2019] UKSC 17 at 41
[10] Ibid
[11] Scott v Bodley (No 2) [2022] NSWDC 651 at 42
Inherent tendency of the words
33The law places a high value on a person’s reputation, and “in particular upon the reputation of those whose work and life depends upon their honesty, integrity and judgment”.[12]
[12] Wilson v Bauer Media & Anor [2017] VSC 521 at 59
34The imputation that a doctor is negligent or has engaged in sexual misconduct is sufficient to cause potentially very significant harm to reputation.
35An ordinary reasonable reader might consider an allegation of negligent practice in an online review to be an expression of the reviewer’s opinion (it is unlikely that such a reader is contemplating a legal standard of negligence).
What was the inherent tendency of the words?
36A reader of the reviews might have considered they were matters of opinion. But the reviews also conveyed an impression that the author had some “inside knowledge”. Ms Ye wrote “unsurprising they've lost so many specialists”, “no wonder many doctors have left this clinic”, “many law suits”, “search them all up” and “search up her court records”.
37These phrases imply Ms Ye knew something about the business that would not be known to the ordinary patient, for example about the number of complaints, lawsuits, or doctors leaving the business. In the Yelp review Ms Ye includes an allegation that there have been “many lawsuits”. This casts a veneer of objectivity and truth over her allegations. The existence of lawsuits could be checked and proven, suggesting it is not just Ms Ye who had a negative experience at the business.
38With the exception of the Yellow Pages review by “Jul”, all the reviews conveyed imputations of misconduct, negligence or legal problems.
39The inherent tendency of such imputations to cause serious harm is high.
40The “Jul” review said there was “questionable behaviour” and that the clinic prioritised themselves over patients and did not care about their patients. The suggestion contained in the review to “search them all up” suggests that readers should look at other reviews which will confirm that the clinic does not care about patients. While this review conveys imputations that the clinic has no regard for the well-being of patients and has a high rate of staff turnover, there is no imputation of negligence or misconduct. The inherent tendency of the words to cause serious harm is significantly lower in this review than in the other reviews.
Extent of publication
Dr Ibrahim’s submissions on extent of publication
41Dr Ibrahim says he first became aware of the reviews on about 3 January 2024. After becoming aware of the reviews, he regularly checked his Business Google reviews, Yelp and Yellow Pages reviews.
42By February 2024 the Google reviews were also visible on the website “Birdeye” where they remained visible until at least August 2024. Although the Birdeye publications are not part of the impugned publications, Dr Ibrahim says I can infer that the publications were republished on Birdeye and that, by reason of the way in which sites like Birdeye aggregate reviews from other websites, Ms Ye is liable for the republication.
43Dr Ibrahim says he made numerous calls and sent emails to the operators of Yellow Pages and Google Reviews to try to have the reviews removed.
44He says the Google reviews were removed in a piecemeal fashion but he was not notified when a review was removed so cannot attest to the actual dates of removal. Dr Ibrahim was certain that the Google reviews remained visible throughout January 2024 because he recalled that he had contacted Google four times, including at the end of January, to try to have them removed. He thought they might have remained online in early February 2024, he was not sure about mid February 2024 and agreed that they did not remain online by March 2024. He says the Yelp review was still accessible on 13 June 2024.
45He was advised by the operators of the Yellow Pages website that the only way to remove the reviews was to remove the entry for Mitcham Rd Consulting Suites on the Yellow Pages site in its entirety. In early February 2024 he therefore deleted his business page from Yellow Pages.
Ms Ye’s submissions on extent of publication
46Ms Ye says she published the Google review from “RB” on 3 January 2024. She edited that review and published it under the names “Ruby Ye” and “Rochelle Ruby Ye”. She said she did this because her review kept getting taken down for not complying with guidelines. She thought the problem might be that she had not disclosed her full name in her review and that was why she changed it. On 26 January 2024 she removed these reviews from Google Reviews.
47She says that publications on Yellow Pages, Yelp and Birdeye were republications of the Google Reviews. The review on Birdeye was removed on 20 August 2024. She believes that the review on Birdeye did not appear until May 2024, using “old caches of Google”[13]. She said she had not had any involvement in the republication of her reviews, and did not know why some of the reviews were published under other names, such as Emma R. She says she was not responsible for the re-publication of her reviews by some of these websites.
[13] Defendant’s Affidavit of 4 December.2023 paragraph 3
What was the extent publication?
48There is no direct evidence that the reviews were read by anyone other than Dr Ibrahim and his wife.
49There is inferential evidence that the reviews were read. The Google review from “Ruby” has 4 likes. The Google review from RB has 2 likes. The Google review from Rochelle Ruby Ye has 4 likes.
50A download of the Yellow Pages website on 5 February 2024 for Mitcham Rd Consulting Suites showed the review from “Rori” had 1 vote, the review from “Jul” had no votes and the review from “MM” had 10 votes.
51Dr Ibrahim relied on data for the Google Business Profile data for Mitcham Rd Consulting Suites. The profile data showed that in the period July 2024 to December 2024, the business profile page had about 2500 views through Google.
52As I understand it, the profile data shows how many times in that six-month period Mitcham Rd Consulting Suites was brought up in response to a Google search. The profile page displays the name of the business, opening hours, a map showing its location and snapshots of Google reviews. To read a review, a visitor can click on the review, or click on an option to “view all” the reviews. The profile data does not tell me how many people, if any, clicked onto any of the Google reviews. There was no evidence was of the number of views any of the reviews had received.
53There was no evidence as to whether the 2,500 figure over a six-month period was high, low or average, and whether those visitor figures were evenly distributed over the months, or whether there were peaks and troughs in visitor numbers. If they were evenly distributed this would amount to around 400 visitors per month. I have no evidence that this data records unique visitors to the profile page.
54There was no evidence as to typical visitor numbers between January and June 2024. Dr Ibrahim said he thought the number of visitors in that period would be roughly similar to the 2,500 views between July and December 2024 but gave no evidence as to why this would be so.
55Dr Ibrahim says an internet search on his name, or on Mitcham Rd Consulting Suites would have brought up a number of results. On the right side of the search result page would be his Google Business Profile page. On the left side of the page the search results would likely display links to other websites in which he or Mitcham Rd Consulting Suites was mentioned, such as his LinkedIn page, Yelp, and Birdeye. The results would depend on the search term. For example a search on his name might bring up the Knox Hospital website where he is medical director. The search results themselves would not, as I understand it, display the reviews. A viewer would need to click on the search result for Yelp to bring up the Yelp review.
56Dr Ibrahim submits that the Court should infer that there was a sizeable viewership based on the period of time that the publications remained online in forums used by Dr Ibrahim to market his business. Dr Ibrahim says I can infer that the reviews were visible on one or more of the websites from 3 January 2024 until at least 19 August 2024.
57The evidence discloses that the Google reviews were online from about 3 January 2024 to mid-February 2024 at the latest. The Yellow Pages reviews were online for a similar period. The Yelp review was online from around February to June 2024. The Birdeye review was online, from somewhere between February and May, until August 2024.
58Even if I assume that the Google Profile page had around 400 views in the approximately one month that the Google reviews were visible on the profile page, I cannot infer that 400 people read the review.
59Dr Ibrahim said he did regular checks of the business’ Google, Yelp and Yellow Pages reviews after he was alerted to the first review on 3 January 2024.[14] He tendered various screenshots of the reviews, which showed the interactions by way of likes or votes. Given that Dr Ibrahim was regularly checking to see whether there were more reviews, I infer that the interaction with the reviews was limited to those interactions in evidence.
[14] Plaintiff’s Affidavit of 6 December 2024 paragraph 7
60Where general readership rather than identified publishees are involved, the test of publication may be satisfied by direct evidence or inference or a combination of both. Where there has been evidence of a social media backlash as a result of the publication the court has drawn an inference about the extent of publication[15]
[15] see for example Deeming v Pesutto (No 3) [2024] FCA 1430 and Greenwich v Latham [2024] FCA
1050.
61Inferences might also be drawn about the extent of publication based on comments, likes and shares. For example in the case of Setia v Radio Haanji[16] I was satisfied there was sufficient evidence to infer the publication had been read by a substantial number of people, likely to be in the thousands because the publication;
(a) was on a Facebook page which had more than 350,000 followers;
(b) attracted 920 likes;
(c) had 272 comments and was shared 165 times to other Facebook groups with a combined total of more than 50,000 followers.
[16] [2025] VCC 44
62In the case of Lorbek v King[17] which involved reviews left on a Google business profile page, amongst other locations, the trial judge (upheld on appeal) noted there were significant deficiencies in the material which the plaintiffs relied on for drawing an inference of publication. Foremost amongst these was their failure to lead evidence from Google regarding the number of people who clicked on the reviews. There was evidence of the number of people who accessed the plaintiffs’ business website and His Honour Justice McDonald was satisfied that a portion of those who visited the website would have done a Google search for the business. A portion of those who did a Google search for the business would have clicked on the Google reviews for the business on the profile page. Some portion of those who clicked on the reviews would have read the various reviews posted. McDonald J noted “It is not possible to make any finding as to the actual number of people who have accessed and read PK’s reviews of 4 April 2017 and 20 October 2017. There is no evidence of the reviews having elicited a ‘like’ or a comment. The absence of such evidence supports a finding that only a small number of people read the reviews. I infer that a small number of people accessed and read the posts. However, beyond this finding there is no platform of facts on which an inference can be drawn as to the extent of the publication.”[18]
[17] [2022] VSC 218
[18] Ibid at 70-71
63I can infer that a small number of people saw some of the reviews on Yellow Pages and Google given the likes and votes.
64I accept that, as a general rule, the number of people who interact with a review by liking, sharing or commenting will be somewhat less than the number of people who read the review. However the number of likes and votes is so small in this case that I cannot extrapolate from those numbers and infer that the actual readership was significant.
65Page views of the profile page are not a sufficient basis upon which I can infer that there were a significant number of people who saw the reviews. There was no evidence as to whether the Google reviews were viewable from the profile page or whether the reader had to click onto the review from the profile page. None of the analytics that can be provided to operators of a Google Profile page was in evidence.[19]
[19] See for example Scott v Bodley (No 2) [2022] NSWDC 651 at 34; High Quality Jewellers Pty Ltd & Ors
v Ramaihi [2022] VCC 2240 at 21.
66I am not satisfied that Dr Ibrahim has established that the reviews have been read by a substantial number of people.
67There is no platform of facts upon which I can draw an inference that anyone saw or read the Yelp or Birdeye reviews. Merely posting something on the internet does not give rise to an inference that it has been downloaded and read.[20] I have no data about the number of page views and no evidence of any interactions with these reviews.
Evidence of serious harm to reputation
[20] Scott v Bodley (No 2) [2022] NSWDC 651at 34
Dr Ibrahim’s submissions
68Dr Ibrahim says he suffered serious harm to his reputation because of the publications.
69Dr Ibrahim says his business has had a profile on Google Reviews since 2011 and on Yelp and Yellow Pages for “a significant period of time”. He says in his experience operating the business “the reviews appearing on these sites have a very significant impact on the way in which the business operates”.[21]
[21] Plaintiff’s affidavit of 16 October 2024 paragraph 8.
70In his oral evidence he said that he had been told “numerous times” by his patients that they looked him up before they came to see him.[22] He says I can infer that many patients would have searched for him or his business online and seen the reviews.
[22] T 37 L 18-19
71Dr Ibrahim submits that because there were multiple reviews on multiple websites, using different names, this created the impression that there were numerous dissatisfied patients, which gave the reviews a greater credibility than a single review from an individual, or even multiple reviews by the same person.
72He says the reviews resulted in an excessive number of cancellations of appointments over the course of 2024. He relies on a printed list of cancellations for the practice from 11 January 2024 to 4 July 2024, 12 January 2023 to 4 July 2023 and 10 January 2022 to end of June 2022.
73In the period 11 January 2024 to 4 July 2024 the business had 375 cancelled appointments. In the comparable period in 2023 the business had 227 cancelled appointments and in 2022 the business had 162 cancelled appointments.
74He says “nothing else changed at the business which could have influenced the cancellation rate in this way. There are and never have been any similarly negative reviews about the business which have appeared online”[23].
[23] Plaintiff’s affidavit of 16 October 2024 paragraph 23.
75Dr Ibrahim says no one has specifically identified the reviews as a cause of their cancelled appointment, and it is not the practice of the business to record the reason for cancellations. He says that patients who have attended since the publications have not mentioned the reviews to him, but it is inherently unlikely that they would, given they had chosen to attend regardless of the reviews.
76Dr Ibrahim says, because all his patients come to him via a referral from another doctor, other doctors could have seen the reviews and chosen not to refer patients to him as a consequence. This would result in the potential loss of many patients. If just one doctor ceased referring patients, this could be sufficient to amount to serious harm.
77He says the impact of the cancellations meant the revenue of the business remained largely the same for the comparable periods in 2023 and 2024, despite a 25% increase in the fee schedule. Dr Ibrahim says although the prices had gone up, the number of patients seen by the business dropped dramatically.
78Dr Ibrahim says further harm to his reputation was caused as a result of having to disclose the existence of the reviews and their content, as well as the legal proceedings relating to those reviews, to his manager and the executive team at Knox Private Hospital where he is the Medical Director.
79In late January 2024 he applied for a position with the Australian Health Practitioner Regulation Agency (“AHPRA”). His application was rejected. He says he was a strong candidate based on his professional experience. He was not given any reason by AHPRA but says I can infer that AHPRA would have been aware of the publications. He says his reputation with those involved in the application process would have been damaged by the reviews. Dr Ibrahim says I can infer the reviews were the reason, or one of the reasons, why his application was not successful.
Ms Ye’s submissions
80Ms Ye says I cannot infer the reason for the increased cancellations at the practice is because of the reviews.
81She says that in March 2023 the business had 10 specialists working at the business. In October 2023 the number had reduced to 5 specialists. By October 2024 only 3 specialists operated out of the business, including Dr Ibrahim.
82She notes that, as at October 2023, the operating hours of the business were 8.30am to 5.30 pm. In October 2024 the operating hours had changed to 9.00am to 5.00pm, Monday to Thursday, and 9.00am to 4.30pm on Fridays.
83Ms Ye says the break down by month of cancellations does not support an inference that the reviews were the cause of the cancellations. Cancellations in January 2022 and January 2024 were the same. Cancellations in January 2023 were much higher. The business had 62, 53 and 80 cancellations in February, March and April 2024 respectively, when she submits none of the reviews were online. The business had 61 cancellations in September 2024 when, she submits, none of the reviews were online.
84She says I cannot be satisfied the cancellations were caused, in whole or in part, by the reviews.
85She says a negative review by Jonathan D, which had been online since 2021 could have also caused damage to Dr Ibrahim’s reputation and driven cancellations of appointments.
86She says that there was only one review on Google at any time, which was replaced. Anyone looking at the Google reviews would not have seen multiple reviews at the same time.
87She says there is no evidence that the publications have caused anyone to think less well of Dr Ibrahim. Ms Ye says I cannot be satisfied that the reviews have caused serious harm to Dr Ibrahim’s reputation.
88Ms Ye says I cannot be satisfied on the balance of probabilities, that Dr Ibrahim’s failure to secure an appointment with AHPRA had any relationship to the publications.
Has Dr Ibrahim suffered serious harm to his reputation?
Did the multiple reviews increase the likelihood of serious harm?
89Whether or not Ms Ye’s intentions in posting multiple times under different names was to create the impression of multiple disgruntled customers, or was because she was attempting to ensure her review was not taken down, is not relevant to the question of serious harm. Her intention might be relevant to whether she acted with malice and therefore to the question of damages.
90Further, Ms Ye’s denial that she published reviews on some of the platforms is irrelevant as those reviews were written by her. The republication of reviews other than where she posted them is a clearly foreseeable consequence of posting in the age of social media, where publications can be readily shared and reposted.
91The fact that readers of reviews understand that a negative experience might result in an exaggerated or hyperbolic review, means the number of negative reviews and the ratio of negative to positive reviews is important. While readers might take both the best and worst reviews with a “grain of salt”, where there are many reviews, from different reviewers, with similar complaints, a reader is more likely to consider those reviews credible.
92I accept that the reviews on Google were not available at the same time. When a review was removed, Ms Ye posted a new review. I accept Ms Ye’s evidence on this as it accords with Dr Ibrahim’s evidence that the reviews kept appearing even after removal. It is inherently unlikely that a reader was observing the Google Profile page over a number of days and therefore saw each review.
93I have no information about when the Yellow Pages reviews appeared and whether they were available at the same time. Dr Ibrahim said he was unable to have those posts taken down and had to delete his account. I therefore assume that the multiple posts were available at the same time and that a viewer of the Yellow Pages site would be likely to have seen the three reviews posted there at the same time. There is some similarity between the reviews which could cause a reasonable reader to consider there was a likelihood that the same person had posted the Jul and MM reviews. Both these reviews convey imputations that the business does not care about the well-being of patients, using similar wording. On the other hand, a reader might consider that two people having a similar experience lends credence to the review. On balance, because the allegations are so general and contain no specifics of the way in which the business purportedly demonstrated its lack of care for the well-being of patients, I think it is more likely that a reader would conclude they were probably written by the same reviewer.
94The fact that there were reviews available on multiple platforms is likely to increase the harm caused by the reviews in two ways.
95First, because a person seeking out reviews about the business, for example a prospective patient, would be likely to see reviews on different platforms from apparently different reviewers and therefore conclude that several people had a negative experience with the business. However, a cursory glance at the reviews on Yelp and Birdeye would demonstrate that they were likely written by the same person, albeit under different names.
96Second, the availability of the reviews on multiple platforms means the scope of readership is increased.
97However, given my previous findings about the extent of publication, the fact that there were multiple reviews does not significantly impact on the harm caused to Dr Ibrahim’s reputation.
98This analysis is based on the assumption that Dr Ibrahim can rely on the total effect of the reviews to establish serious harm. If he must prove serious harm in relation to each review, the prospect that each individual review caused serious harm is further diminished.
What do the cancelled appointments establish?
The number of cancelled appointments
99Dr Ibrahim’s submission in relation to the cancelled appointments relies on an inference that, in the absence of evidence of any other cause, I can be satisfied on the balance of probabilities that the increase in cancellations was a result of the publications.
100In the first half of 2022 there were 162 cancelled appointments. Dr Ibrahim said that 2022 would probably have been the worst year for cancellations because this was the “peak of COVID”. I take it from this that, prior to 2022, the business generally had significantly less than 162 cancellations.
101However, in 2023 the number of cancellations increased approximately 40% to 227. This was well before any of the publications. Even if an increase in cancellations in the 2022 period could be reasonably attributed to COVID, I am not persuaded that a 40% increase from 2022 levels in 2023 would be attributable to COVID. One would have expected the rate of COVID related cancellations to decline, or perhaps remain the same as in 2022. It appears that something happened in 2023 that resulted in a 40% increase from the already high level of cancellations in 2022.
The timing of cancelled appointments
102Cancellations increased again in 2024 to 375, a further 65% increase. However a breakdown of the cancellations by month does not demonstrate any correlation with the appearance of the reviews.
103In August 2024 there were 78 cancelled appointments. In September 2024 when the reviews were no longer online there were 62 cancelled appointments. In the first 15 days of October 2024, the most recent data before the court, there were 52 cancelled appointments. Although Dr Ibrahim says he does not know exactly when the reviews were removed and cannot be certain that they have not been replicated elsewhere on the internet, it is reasonable to assume that the most likely way that patients would have seen the reviews was by doing a Google search of the business, which would have brought up the Google Profile page. The reviews most likely to have been seen were, consequently, the Google reviews.
104Dr Ibrahim concedes that the Google reviews were removed, at the latest, by early February 2024.
105The date of cancellation records the date that the appointment was cancelled. It does not record the date of the cancelled appointment. Dr Ibrahim said that in general there is usually a waiting period of between one and three months to get an appointment.
106This means that for an appointment in January, a booking was likely made sometime between October and December the previous year.
107However a cancellation in January might occur the day before, or up to three months before the scheduled appointment, that is, a cancellation recorded in January could be for an appointment in January, February, March or April.
The cause of cancelled appointments
108There is no data about who cancelled appointments, or the reason for the cancellation. Although some cancellations note that the patient was a “new” patient, Dr Ibrahim says this data is unreliable as it depended on the receptionist recording “new patient”. Other cancellations may have been from new patients but not recorded as such.
109The publications could have impacted Dr Ibrahim’s practice either because:
(a) patients with existing appointments cancelled those appointments;
(b) patients with a new referral did not make appointments; or
(c) referring doctors declined to refer patients.
110Some of Dr Ibrahim’s referring doctors would make the appointment for the patient. It is possible that those patients then did an online search and found the reviews and cancelled the appointment.
111It is possible, though less likely, that patients with an existing appointment which they had made themselves, might have undertaken a subsequent search for the business, found the reviews and elected to cancel it. This is less likely because a patient interested in the reviews of other patients is inherently more likely to undertake that search prior to making the appointment than after making the appointment.
112A patient who had obtained a referral but whose referring doctor had not made the appointment, might do a Google search for the business or the relevant specialist prior to making the appointment, see the reviews on the profile page and elect not to proceed with the appointment, but instead, ask their doctor for referral to a different clinic. This would not be recorded as a cancelled appointment. If there were a significant number of such patients, I would have expected evidence that showed a decrease in new patient appointments in the aftermath of the reviews. There was no such evidence.
113Patients who had already attended the business would be less likely to cancel their appointments because of the reviews than new patients who had never been to the business. This is because patients are likely to trust their own assessment of a medical practice over the opinions of an anonymous reviewer on the internet. Here I adopt the reasoning of Judge Gibson in Scott v Bodley that readers of Google reviews would know that they must be read with a degree of caution and that these reviews are largely expressions of personal opinion. The caution with which the ordinary reasonable reader approaches Google reviews would apply equally to reviews on other websites.
114Dr Ibrahim gave no evidence that doctors from whom he received referrals stopped referring or decreased their rate of referrals after the reviews appeared. I infer that there was no such evidence available. I accept that he will never know if a new referral source decided against referring to the business because of the reviews, but the mere assertion that this might be so is insufficient for me to infer that it is likely to have occurred and can be relied on to demonstrate serious harm.
115Dr Ibrahim said that online marketing was the main source of advertising and the main way of people finding and using his business. Patients attending the clinic can find the business by online searches which provide contact details and directions. He said that many patients have said to him that they looked him up before attending.
116However, there is no evidence that the online marketing is the primary mechanism by which referring doctors select him or his clinic. Referring doctors might select a specialist based on a number of things, including specialisation, experience, personal knowledge, feedback from patients, general reputation, availability of appointments and location. I do not know the degree to which referring doctors have regard to Google and other reviews. I cannot discount the possibility that such reviews play a role in the process by which a referring doctor selects a specialist but I also cannot infer, in the absence of some evidence about this, that it is a primary factor or would be a factor that would outweigh other considerations.
117I would expect doctors to be as likely as other internet users to approach online reviews with a healthy dose of scepticism.
118The reviews on Google and Yellow Pages were removed, at the latest, by early February 2024. The reviews on Yelp were apparently still online in June 2024 but I have no information about whether they remained after that time. The reviews on Birdeye were online until August 2024, although possibly did not appear until May 2024. Dr Ibrahim was carefully monitoring for reviews in the period immediately after the Google and Yellow Pages reviews. If the Birdeye posts were available in January or February 2024 it is likely he would have found them.
119If the reviews were the primary cause of cancellations, I would have expected to see the most cancellations in January and February 2024, when both the Google and Yellow Pages reviews were online. However cancellations in January were only 29, compared with 41 in January 2023 and 29 in January 2022. Cancellations in February were 62 compared with 35 in each of the preceding Februarys. I would have expected to see a reduction in cancellations after the Google reviews in particular were removed. However cancellations were 53 in March and 80 in April 2024. Even if I accepted that the Yelp and Birdeye reviews were online and causing the high cancellation rates, I would then have expected to see a reduction in cancellations in September and October 2024. Cancellations in September were 61, similar to the cancellation rate in February. Cancellations for the first 15 days of October were already 51, suggesting there was no decline in the rate of cancellation after removal of all the reviews.
120A patient who was prompted to cancel an appointment after reading the reviews would not be likely to wait weeks or months to cancel that appointment but rather would likely act around the time the review was read. It is inherently unlikely that the reviews caused cancellations in the second half of August, and through September and October 2024. The prospect that there might be reviews somewhere online that Dr Ibrahim has not discovered is also inherently unlikely. If he has not found them through his own searches, it is highly unlikely that a sufficient number of patients have done so to account for the continuing high rates of cancellation.
121Dr Ibrahim asks me to infer that the increased rate of cancellations in 2024 was caused by the reviews and to draw the further inference that this demonstrates serious harm to reputation.
122However the evidence does not support the inference that the reviews were the cause of cancellations. I therefore am not satisfied that the cancellations demonstrate serious harm to reputation.
123For completeness I am also not persuaded that the Jonathan D review had any impact on cancellation rates in 2024. It had been online since 2021. To the extent that it might have driven any cancellations, that effect is likely to have been greatest at the time it was published, or consistent over time. There is no reason why it would suddenly have contributed to an increase in cancellations in 2024.
124Nor do I consider the changed business hours or reduced specialist numbers to directly answer the question of why there were increased cancellations in 2024. Dr Ibrahim provided cancellations across the three years only for the three specialists, including himself, who remained working at the business. Similarly, appointments would, presumably, be made during the operating times available. Reduced operating hours might explain a reduction in overall appointments but would not explain an increase in cancellations.
Is there evidence of damage to reputation amongst patients who did not cancel?
125Dr Ibrahim says in the past many patients have told him that they looked him up online and although no one has said anything to him about any of the reviews, I can infer that many patients would have seen the review. I have dealt with the question of extent of publication already. Because patients in the past have looked him up online this does not mean they have read online reviews.
126However, even if I was satisfied that patients who did not cancel their appointments had read the reviews, the fact that they continued to attend Dr Ibrahim suggests the reviews did not cause serious harm to his reputation.
Did the business lose revenue because of the reviews?
127Dr Ibrahim says his business suffered a net loss of revenue because, despite increasing fees, the income remained about the same. He provided no documents to support his assertion.
128In the absence of evidence that fewer patients attended the business because of the reviews I am not able to infer that any reduction of revenue in real terms can be attributed to the reviews.
129I would have expected cogent evidence of any such business loss, and do not accept that a mere assertion of loss can suffice.
130There is no evidence that the cancellations resulted in an overall loss of business. I have no information as to the number of patients who cancelled an appointment and did not re-schedule.
Did the disclosure to his peers damage his reputation?
131Dr Ibrahim says he had to disclose the reviews to others, including his manager and the executive team at Knox Private Hospital where he is medical director. I have no doubt this was an unpleasant and embarrassing experience. No one would enjoy showing colleagues the reviews, especially given the highly defamatory content of those reviews.
132However there was no evidence, either direct or inferential, that any of his colleagues believed the reviews or thought less of him as a result. I accept it is difficult for plaintiffs to prove that any individual thought less of them as a result of a publication. However there must be at least some basis upon which I could find that Dr Ibrahim’s colleagues were likely to think less of him.
133I am not persuaded that the reviews of one disgruntled patient would be sufficient to cause serious harm to Dr Ibrahim’s reputation in the eyes of those who knew and worked with him. The fact that Ms Ye published multiple reviews under different names gave the reviews the flavour of a vendetta which would have been readily identifiable to someone looking at the reviews as a whole. Dr Ibrahim’s colleagues would be unlikely to accept the reviews as true.
Did the reviews impact the application to AHPRA
134Dr Ibrahim’s submission that his unsuccessful application to AHPRA is evidence of serious harm to his reputation requires the following inferences to be made:
(a) the people assessing his application to AHPRA saw the reviews;
(b) AHPRA had regard to the reviews in the assessment process;
(c) the reviews resulted in his unsuccessful application.
135I am not satisfied any of those inferences are open. There was no evidence about the other applicants for the position, other than there was a diverse field of candidates and there were too many applicants for the Selection Advisory Panel to provide individual feedback.[24] I cannot conclude that the reviews had any role to play in Dr Ibrahim’s unsuccessful application.
[24] Exhibit D2, T31 L13
Findings on serious harm to reputation
136I am not satisfied that Dr Ibrahim has established he suffered serious harm to reputation. Although the inherent tendency of the words to cause serious harm was high, there was very little engagement with the reviews and the extent of publication was extremely limited.
137Publication to even a small number of people can cause serious harm, but would require cogent evidence of that harm. There is no proof of actual harm to Dr Ibrahim’s reputation, and no evidence upon which I can draw an inference of harm to reputation.
138The reviews were nasty and designed to hurt the business and by extension Dr Ibrahim. They have the flavour of a vendetta and appear to be a form of spleen venting. I accept they caused Dr Ibrahim stress, anxiety, hurt and embarrassment. However this is insufficient to meet the test for serious harm.
139Accordingly, Dr Ibrahim has not established that the reviews, in combination or separately, have caused serious harm to his reputation.
140I will hear the parties on the appropriate form of order and on the question of costs.
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