Positive online reviews can increase traffic to your site, and improve the trust that customers have in your products and services. They also build confidence in your brand.
However, negative reviews can be detrimental or even disastrous for your business, and your brand may be irreparably damaged. While people are entitled to their own opinions and it is impossible to please everyone all of the time, should false or malicious comments online be tolerated?
So when does a negative statement constitute defamation and what action you can take to protect the reputation of your business.
When does a statement become defamation?
A statement may be defamatory if it is untrue and has caused or is likely to cause your business serious financial loss. In written format, defamation is described as libellous. If it is said or spoken aloud, it is slanderous. Both are forms of defamation. On the internet, most defamatory comments are likely to be libellous and would be slanderous if they were spoken or on an audio recording.
The Defamation Act 2013 overhauled the law in this area and changed the criteria for what was required in order to bring a claim for defamation. This is that there should be the prospect of serious harm caused to the complainant. For a business, it is necessary to show, on the balance of probabilities, that the defamatory material in question constitutes actual or probable serious financial loss. In considering serious harm, a court will have regard to all of the relevant circumstances, including events post-publication.
Does the author have a defence?
The author of the review or material may have a defence if the content is substantially true. Even if some of the published material is untrue, if no serious harm or financial loss has been caused to your business, the author will still have a valid defence; for example, it may be difficult to prove probable serious financial loss if a review focuses on a product that you no longer stock.
It is also a defence if the material constitutes an honest opinion. If it is not someone’s honest opinion, or if it is someone else’s opinion and not the author’s, the defence fails, although in practice this is likely to be difficult to prove. For the honest opinion defence to succeed, it needs to be a statement of opinion, which indicates the basis of the opinion, and must have been made by an honest person, based on any fact that existed at the time the statement was made. It is also possible to defend a claim on the basis that the statement was published in the public interest.
What evidence is needed to prove serious financial loss?
The evidence you require may differ, depending on the nature of the defamatory content, but generally you need to be able to prove that:
- the content is available on the internet;
- it relates to your business;
- it is not true or not the author’s honest opinion; and
- the review has or will cause your business serious financial loss if it is not removed.
Proof of actual or likely damage to your business is required that:
specifies what that loss is or is likely to be; and
shows that the loss is serious (‘serious’ loss may mean, for example, that you have lost potential clients and the value of those clients is significant).
Alternatives to going to court
Going to court or arbitration can be particularly costly. Before resorting to time-consuming and expensive court action, it is well worth seeking the advice of a dispute resolution lawyer. Often such disputes can be resolved without the need to start legal proceedings.
It is possible for victims of website defamation to try to get the search result removed from Google and other search engines. If this fails, your lawyer may be able to put pressure on the author and also the website operator or host, where applicable, since both can be liable for defamation. There are defences available to website operators and hosts but these are complex and, if they do not comply with the regulatory provisions exactly, they risk losing their defence to any future action.
What are your legal options?
If a case does have to go to court, you could ask for:
- an injunction to stop any further bad reviews from being left;
- a retraction to remove the material;
- an apology; or
- compensation.
As with all court proceedings there are costs consequences to consider and it is not advisable to take action without having sought specialist advice beforehand. In practice, these cases are often resolved without needing to go to court. The material is removed on the basis that there is no further claim for compensation. While a lack of compensation may be disappointing, you will have achieved what you set out to do in having the offending material removed.
There is a one-year limitation on making a defamation claim so it is advisable to seek legal advice as early as possible to explore the options in your particular case.
If you need help with removing an online review or other content that is libellous, please contact the Dispute Resolution Team at JPP Law.
Telephone: +44 (0)20 3468 3064
Email: [email protected].
