YouTuber Stefan Fischer sued over a product review

YouTuber Stefan Fischer is now the subject of a lawsuit which could be a landmark case for content creators, product makers and anyone that wants to rely on a product review.

Over the last three years Fischer, who runs the AllOffroad 4X4 Adventures TV YouTube channel as a retirement hobby, has been reviewing batteries from DCS, Deep Cycle Systems, a battery supplier who say they “deliver safe lithium iron phosphate (LFP) & Titanate (LTO) energy storage solutions for a wide variety of applications”.

DCS supplied Fischer the batteries free of charge. Initially Fischer was impressed, and recommended them. He had an affiliate system going where his viewers could buy the batteries and he would get a small commission.

Over time, Fischer says he became concerned about the performance and quality of the batteries and performed testing. In a press release, he says that “after extensive testing over three years, Fischer raised concerns about the batteries’ performance and suitability for off-road and camping use in videos posted in 2023. These reviews have now led to a lawsuit filed by DCS in the District Court of Queensland, Proceeding Number 1169 of 24. DCS alleges that Fischer’s reviews were defamatory, made maliciously and resulted in significant financial losses.”

I spoke to DCS to get their side of the story but the company declined to comment as the “matter is before the courts”.

Fischer has begun a funding campaign to meet as he expects costs of around $200,000. Community support has been strong and within 24 hours he has raised over $10,000 towards his initial $80,000 goal.

Links to his Patreon and GoFundMe are below:

GoFundMe: https://gofund.me/5616f8a7
Patreon: https://www.patreon.com/alloffroad

The original video DCS objected to is no longer available, but Fischer has released an update:

Analysis

Fischer says that this case is bigger than just him, and he’s right. YouTubers tend to be tiny one-person bands, often run as side-hustles, and do not have any appetite for legal fights as the companies concerned tend to have far greater resources. Already, any YouTuber or blogger looking at this case will be second-guessing their next reviews, so that’s the effect on the content creators. The mere threat of legal action will be enough to deter many, and I understand that even if successful, the defendant could still be out of pocket.

The further effect will be the consumer; if every content creator is too scared to review anything then independent reviews will be no more and it’ll be just cash-for-comment which is never, ever independent. It is also possible mere members of Facebook groups who give their opinions in detail could also be sued, and potentially the admins as well.

The case is also a very good reminder of the precautions content creators need to take – and this is said without specific reference to this case. A defamation action requires two factors, and this from Gordon Legal:

“First, the plaintiff has to prove that the defendant made the statement maliciously, i.e. with the intention to do harm to the plaintiff. Second, the plaintiff has to prove that the statement caused actual damage, such as a loss in sales or an increase in customers seeking refunds.”

And, from the Judicial College of Victoria:

“The defendant must not only prove the truth of the words complained of in their literal meaning but also the truth of the defamatory sting. This means that every material part of the meaning complained of must be true, otherwise this defence fails.”

So, for DCS to win, they must prove a) that Stefan is wrong b) they have suffered loss as a result. Content creators can ensure they mitigate similar risks by carefully researching so they’re right, and personally, I also show drafts to the companies concerned before publication in case there are technical errors or we’re going to have an argument. Finally, there is also professional indemnity insurance which covers errors, omissions and defamatory statements – worth considering along with public liability. You can, and should use phrases like “The evidence gathered in my test shows that…” rather than “This product is terrible”, strive to be as even-handed as possible, even if you’d get more views with a bit of ranting and emotion, and always offer a right-of-reply.

Again, no suggestion best practice wasn’t followed in this case; I’m making points for content creators in general to consider. And the problem is that even if everything you do is fair, correct and accurate, there’s still nothing to stop people suing you because they don’t like the conclusions you’ve drawn.