Defamation & Online Business Reviews

Many businesses rely on positive reviews posted by customers on search engines such as Google to generate new leads and build a commercial reputation. It is understandably distressing when one receives a negative review, especially if it contains false allegations.

Allegations containing false statements may be liable to an action in defamation and/or malicious falsehood. One of the main elements to prove a claim of defamation or malicious falsehood is the publication of a defamatory statement to a third party, other than the person or business being defamed.

In the context of online business reviews, publication is commonly the act of posting the review on the website which would be viewed by members of the public. Whilst the law does not require a threshold number of viewers before a publication can be actionable, there is a limitation that, if publication is minimal and the damage to the claimant’s reputation would have been insignificant, the Court can strike out the defamation claim on the ground that it is an abuse of process to pursue a trivial claim.

What amounts to publication sufficient to establish a claim in defamation depends on the circumstances in each case. It was once ruled by the Court that very serious harm to reputation can be caused by publication to a small number of recipients. Furthermore, there is no presumption that publication on the internet, accessible by everyone online, is necessarily substantial enough to warrant the law’s resolution.

How does one prove publication in the context of online business reviews? The recent judgment of the High Court in the case of Frati v Bowen-Carter [2023] EWHC 627 (KB) gave some helpful indication.

Frati v Bowen-Carter [2023] EWHC 627 (KB) (22 March 2023)

Background

This case concerns a Google Business review posted by a disgruntled client of a well-known plastic surgeon, alleging that the plastic surgeon provided discounted surgeries to celebrity clients in exchange for positive reviews. When the plastic surgeon became aware of the damaging review, he instructed solicitors to send the client a letter of claim. The client removed the words complained of three days after the initial review was posted.

The plastic surgeon issued a claim of defamation against the client. The defendant client applied for summary judgment for and strike out of the claim, on the ground that the claimant has no real prospect of establishing that there had been substantial publication.

The claimant provided to the Court evidence of the mechanism of Google Business reviews, how viewings and engagement metrics are tracked, and diagnostic data of those viewings in support of an inference of substantial publication. However, there was no actual data on how many have read the review, or how many clients were lost due to the review. The defendant counter-argued by saying that the review was online for just three days and the claimant’s case was based wholly on inferential circumstances.

The Court’s decision

The Court ruled that, as a matter of principle, a defendant can seek summary judgment and/or strike out on the basis that there has been no publication. The Court also acknowledged that the claimant is unlikely to be able to produce evidence of potential customers that have been lost because of the review. However, the claimant has been able to produce evidence that can be tested at trial about the way in which he obtains business and the importance of online reviews. Therefore, whilst the claimant may not be able to obtain more data on the review, it is likely that there may be further evidence to show how online reviews are used and impact the claimant’s business, hence establishing the extent of publication required to prove his claim.

As a result, the Court held that the claimant has a realistic prospect of success in establishing facts that allow the inference of substantial publication and dismissed the defendant’s application.

Comment

Defamation and malicious falsehood are very fact-sensitive causes of action. Proof of facts required for establishing the elements of a claim can be evidentially complex. As demonstrated in this case, the nature and amount of evidence can significantly affect not just the merits of a claim, but also how proceedings are conducted.

If you are considering making a claim of defamation or malicious falsehood, it is recommended that you speak to our specialist dispute resolution team.