Here’s hoping that yours has been a successful and profitable Christmas. Unfortunately, with increased footfall, the chances of negative reviews – often unwarranted – also increases. If negative reviews are shown to be defamatory, the time has probably come to initiate legal proceedings to clear both your name and that of your establishment. Daniel Jennings, partner in the Commercial Litigation Team at Wright Hassall Solicitors, addresses the muddy issue regarding online defamation.
A few months ago there was a flurry of media activity detailing the fact that individuals were being threatened with jail either for writing bad restaurant reviews on TripAdvisor or for giving hotels one-star reviews. You may feel that you have been the victim of online defamation, but how are you to know whether an unjustifiably negative review is simply a case of uncalled for rudeness or worthy of legal action?
From a legal perspective, the definition of what constitutes defamation is contained within the Defamation Act 2013, which came into force in January 2014. The Act holds that for a statement to be defamatory, the publication of the statement must have caused, or be likely to cause, serious harm to reputation.
If this relates to harming the reputation of a business, this would not be ‘serious harm’ unless it has caused or is likely to cause the business serious financial loss. This has been the claim in recent cases by businesses responding to bad reviews, arguing the online comments have been deliberately dishonest and unjustified.
The key in defamation claims is to deter and remedy unwarranted harm to a reputation. For someone to claim they have been defamed online, the defamatory words must be ‘published’ to at least one other person (other than the person or business being defamed).
The significant point when considering whether the words published are defamatory, is that they must cause injury to a person’s (or business’s) reputation.
This can be by diminishing a reputation in the eyes of right-thinking members of society generally; causing a person (or business) to be avoided because of the words used; or exposing a person to hatred, contempt or ridicule.
For businesses and individuals dealing with bad online reviews, or comments on Facebook and Twitter, it can be stressful, but just because the comments are not good they are not necessarily defamatory.
Honesty or defamation
One of the defences to any claim in defamation law is that the words used were an honest opinion. People are able to express any opinions they want about a business, for instance, so long as the words were a statement of opinion, which an honest person could have held based on facts that existed at the time the statement complained of was published.
However, if you have any concerns or suspect a review contains exaggerated opinions, or ones that cannot be justified, with the sole intention of causing your business harm, it might be time to take legal advice.
For those making any comments or expressing an opinion, especially online, you should always consider what meaning or meanings the words are reasonably capable of bearing, e.g. words can be defamatory not only in their natural and ordinary meaning but also through innuendo.
Repetition is no defence
It should also be remembered that repetition is not a defence. If you repeat a defamatory comment you could be held liable unless you can prove that the subject matter of the comment is true, regardless of whether you are simply repeating something you have been told by someone else.
No-one is immune from a defamation claim and there have been some high-profile defamation claims over recent years, which have added to the general rise in claims seen in recent years. One such example is that of ‘The Lord McAlpine of West Green v Sally Bercow’. Lord McAlpine was a former Conservative politician and Ms Bercow is the wife of the speaker of the House of Commons.
If you have any concerns or suspect a review contains exaggerated opinions, or ones that cannot be justified, with the sole intention of causing your business harm, it might be time to take legal advice.
McAlpine v Bercow The case revolved around a tweet posted by Ms Bercow following a Newsnight broadcast, which falsely linked an unnamed ‘senior Conservative politician’ to sex abuse claims. Although Lord McApline’s name was not mentioned, he was wrongly identified afterwards on the internet and two days later Ms Bercow tweeted: “Why is Lord McApline trending? *innocent face*.”
Ms Bercow had over 56,000 Twitter followers at the time of her tweet, which was described by Lord McAlpine’s legal team as a bigger readership than many regional newspapers.
Lord McAlpine issued proceedings claiming that Ms Bercow’s tweet in both its natural and ordinary meaning and/or by way of innuendo, amounted to an accusation that he was a paedophile who was guilty of sexually abusing boys living in care. While others apologised publicly, Ms Bercow continued to deny her tweet was defamatory and claimed it was meant to be “conversational and mischievous.”
The Judge ruled in favour of Lord McAlpine and Ms Bercow agreed to pay an undisclosed sum for damages (which have reportedly been given to charity), together with his costs. Ms Bercow also withdrew the allegations and undertook never to repeat them.
Consider before commenting
If you express an opinion about someone or a business that could be capable of bearing a defamatory meaning, make sure you can prove the words were true in substance and fact. Or that your words were honest comments made without malice on a matter of public opinion, or some form of privilege attached to the publication or the subject matter had legitimate public interest and complied with the standards of reasonable publication.
Defamation is a serious matter and can be very costly for those found liable, even if the comments were made in haste online and removed just as quickly.
Most businesses now actively monitor their online reputation and welcome honest customer feedback, believing genuine criticism can help them improve, but many will also take action to protect and defend their reputation when they believe it has been unfairly maligned.
Regardless of whether you are the person or business that has been defamed, or you are faced with a defamation claim for an online comment made, you should seek specialist legal advice as soon as possible.
Wright Hassall is a top-ranked firm of solicitors based in Warwickshire, providing legal services including: corporate law; commercial law; litigation and dispute resolution; employment law and property law. The firm also advises on contentious probate, business immigration, debt recovery, employee incentives, information governance, professional negligence and private client matters.