This article is not intended to be a critique of either the internet or social media. Used correctly they can enhance modern day businesses by opening new markets and possibilities. They can, however, be equally harmful and damaging.
As consumers, we are all able to review virtually every aspect of our consumer experience online for others to read – from the food we eat to the hotels we stay in. Business use these reviews to enhance their reputations and as a marketing tool to set themselves aside from the competition. What happens, though, if an unfair review is posted? This can be troublesome to navigate particularly if a review is untrue or does not appropriately reflect the service provided. In such instances the law of defamation (which includes libel and slander) applies.
A recent example is BW Legal Services Ltd -v- Trustpilot A/S [2024] EWHC 1449 (KB). In that case the claimant (a law firm which specialised in debt recovery cases) brought a claim against Trustpilot (a company which operates a consumer review website). The Claimant claimed that comments made on the site were defamatory and claimed damages of between £10,000 and £50,000. It argued that the reviews had caused it to suffer the loss of a chance to tender for a contract for the purchase of debt from a large telecoms company. Apparently, that telecoms company had been concerned about the reviews on the Defendant’s website although ultimately had decided that it preferred to remain with its existing supplier. The claimant also alleged that its reputation was harmed as others reviewing the site would be less inclined to use the firm’s services.
The term ‘defamation’ covers ‘libel’ and ‘slander’. Both concern the publication of defamatory material that adversely affects someone’s reputation. Libel deals with lasting forms of publication such the printed word, broadcasts or published online. Slander deals with things such as spoken words or gestures. In this case the defamation complained of took the form of libel given the lasting nature of the reviews.
In its simplest terms, a claimant should be successful in a claim for defamation if it can demonstrate that the statement complained of is defamatory. Generally speaking this would mean demonstrating that the statement / publication lowers the estimation of the Claimant in the minds of people generally and has a substantial adverse effect on the way the claimant is treated. Of course, the statement made must also be false. If it is true then the claim will fail.
BW Legal Services was unsuccessful in its claim. The court decided, upon an application by the Defendant, that:
- Many of the reviews complained of were made by aggrieved debtors against whom the firm had successfully taken action. The court questioned whether such reviews had caused the Claimant’s loss.
- The Claimant had originally pleaded that 136 reviews had caused the loss. They later revised that to 20 and at the point of tendering for the telecoms work there were only three. There was no evidence that the telecoms company had seen those specific three reviews. Even if they had that company had been clear that it had not proceeded because it wanted to stay with its existing supplier. In other words, the reviews did not influence the decision.
- Finally, the Claimant was required to demonstrate the financial loss was more likely than not caused by each review complained of. The court determined that, given the volume of reviews, it could not be said that the claimant had demonstrated that any one of those 20 reviews had, specifically, caused a loss.
Defamation is a notoriously complex area of law and one which is, by virtue of the facts, generally bitterly contested. The above case follows the “Wagatha Christie” saga and one need only look to that case between Rebekah Vardy and Coleen Rooney to demonstrate how bitterly contested such matters can be. That case has been reported widely in the press and is perhaps saved for another time. Many readers will by now be aware that that case concerned social media posts that were made privately and an allegation by Mrs Rooney that Mrs Vardy was secretly informing a national newspaper of those private posts. After lengthy (and by all accounts very costly) proceedings the court decided in Mrs Rooney’s favour believing that her statement about Mrs Vardy was substantially true.
So what lessons can be taken from all of this? We live in a world where ideas and opinions can be shared at the press of a button about both businesses and individuals. The internet can give a feeling on anonymity and security when making such comments. However, as every review has potential to harm a business or individuals’ reputation such comments are not beyond reproach. Consumers should always take care when leaving a review online about the services they receive. Doing so in a way that is misleading or false can result in potentially costly litigation that is always best avoided. It is difficult to think of any review that its quite important enough to risk that.
Business or individuals on the receiving end of a bad review which is considered inaccurate or unfair should seek independent advice before escalating things further.
If you have any queries relating to Defamation, please contact our Dispute Resolution Team on 0345 646 0406 or complete an online enquiry form, and a member of the team will be in touch.