In the age of the internet, reviews for businesses on sites such as Google, Yelp, and TripAdvisor to name a few are commonplace. Businesses rely on positive reviews to build a good reputation and get new consumers and clients. However, there is also the possibility of getting a bad review, but in which instances can a bad review amount to defamation?
Are negative online reviews considered defamation?
The starting point is to consider whether someone’s opinion can be defamatory. A comment will be defamatory if the comment published to third parties is likely to lower the reputation of the company/individual in the minds of right-thinking individuals generally. As such, any significantly negative review left about a company/individual’s business/workmanship is capable of having a defamatory meaning.
In order for a company/individual to pursue a claim for defamation, however, they will need to be able to show that the comment made has caused or is likely to cause them significant harm. In such circumstances, it would be helpful to be able to refer to a dip in profits or a string of customers refusing to proceed due to finding the online review but often this will not be possible. In such cases, it may be possible to seek that the Court decide the case based on an inference that there has been or is likely to be significant harm.
Further, a review that is based on truth or honest opinion is permissible. For example, if a customer had a bad experience at a restaurant and left a negative review based on that experience, as long as the review does not go too far, the reviewer is likely to have a complete defence to any claim being pursued against them.
There are some instances where businesses respond to the review in hopes of appeasing the customer with a carefully worded response. This can be a good way for a business to show that they are committed to improving customer service. In the event, this does not work, businesses may opt to take action in respect of the offending reviews.
What can a business do in these circumstances?
A business can report the review to the operator of the website and it may be taken down if it breaks the operator’s house rules.
However, if that fails to work then the business can take legal action. Under the Defamation Act 2013, the following criteria need to be met:
1. It must be published to a third party
This requires a statement to be made publicly and be shared with someone else, verbally or in writing.
2. It must be a false statement
A statement is only considered to be false if it is untrue and/or intended to create a false impression. As previously stated, expressing your opinion is not usually defamatory unless it is found to be untrue.
3. It must cause serious harm to the claimant
The defamation needs to be sufficiently serious that there is reputational damage. If the statement has been made about a business, they will need to show the financial impact that had or may be created.
The Court will usually consider all relevant circumstances and therefore proof of damage to reputation is essential as established in the case of Lachaux v Independent Print Ltd [2015].
4. There must be no defamation privilege in place
There can be certain circumstances where statements are immune from defamation. You can be protected by absolute privilege; this is on occasions when the statements made are considered sufficiently important for example public policy reasons. There is also a qualified privilege.
There are two types: statutory qualified privilege and common law qualified privilege.
- Statutory qualified privilege covers a statement on a matter of public interest, but this can be defeated if the statement is made with malice.
- Common law qualified privilege covers statements made where there is a reciprocal relationship of duty, including a social or moral duty.
Remedies
There are different remedies available in a defamation claim. The first is damages; you can get compensatory damages which aims to compensate for damage to reputation and consider the hurt that the defamatory statement caused and special damages. You can also have non legal remedies such as obtaining an apology, a retraction, or a corrective statement.
Comment
In any type of service or experience provided by a business, there will be opinions and reviews. There is a low level of public awareness as to the risks involved in defamation through online reviews. The public needs to know the risks around defamatory statements and the potential impact on the reputations of businesses as otherwise, they could find themselves on the wrong side of a Court order.
How can Nelsons help
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact a member of our Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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