Defamation through Online Reviews in the UK
‘There is no such thing as public opinion. There is only published opinion.’ – Winston Churchill
But when it comes to online reviews, to what extent is ‘published opinion’ simply that, and at what stage does it cross the line?
Leaving an online review of a business is common place nowadays. Businesses are keen to receive and publish feedback (often inviting their customers to do so) and potential customers rely on published feedback and reviews to make an informed choice before proceeding to engage with a business. The breadth of platforms available for online feedback is wide and varied from review-orientated websites such as TripAdvisor to social media based platforms such as Facebook and Twitter.
However, leaving a bad review can have unexpected (and potentially costly) consequences.
Can Someone Leave a ‘Bad’ Review?
The starting point is that a review which is both truthful and an honest opinion is perfectly permissible. If a customer has had a bad experience and leaves such a review, it may still leave the business feeling besmirched, but it is unlikely to be actionable. In some instances, the business may decide that no response is necessary. An expansive online dialogue with a negative reviewer is unlikely to reflect well on a business, but in some instances a brief but carefully worded factual response may be appropriate. It can also be used as an opportunity to show its commitment to providing good customer service.
When does an Online Review become Defamation?’
A review which isn’t truthful can be very harmful to a business, and is likely to be considered defematory. A written review which is defamatory is known as libel. For a review to constitute libel it must:
1. Be written;
2. Be false or comprise dishonest opinion;
3. Have caused or be likely to cause harm and financial damage; and
4. Cause the subject to have been lowered in the estimation of ‘right thinking members of society.’
The first step in limiting the potential damage caused by a libellous review is getting the content removed. The business may be able to do this themselves if they have administrative controls over the relevant online platform. However, more often than not, a business will need to contact the reviewer to request that the review is removed (or the libellous comments removed), as well as engaging with the web provider responsible for the online platform to seek their assistance in removing the review.
If these attempts are not successful and business is being lost as a result of the libellous reviews, further action may then be necessary. Disputes pursuant to a claim for defamation are governed by the Pre-Action Protocol for Defamation. The Protocol requires a formal Letter of Claim to be sent to the reviewer inviting their cooperation in the removal of the libellous review. If this is unsuccessful Court proceedings (in the High Court) may become necessary, at which point the reviewer will not only find themselves with the burden of proving that the comments they made were true (which may not be easy), they are also at risk of having to pay compensation as well as legal costs.
Therefore, whilst a careless review given in anger or frustration may, at first blush seem cathartic and righteous to the reviewer, it can quickly become both expensive and troublesome. The right to freedom of expression remains, but is inevitably qualified by the need for truthfulness.