In the modern world, it is common for people utilising the internet and social media platforms to feel that they can write whatever they wish on the internet about third-party people and/or companies.
An expression we hear a lot from new clients in this area of practice is ‘freedom of expression’. That is of course part of the picture when considering a defamation claim but the Court must conduct a balancing exercise between that freedom to express oneself and the right to private and family life.
Defamation claim against Trustpilot
In the case of BW Legal Services Ltd v Trustpilot A/S [2023], Mrs Justice Tipples DBE heard preliminary issues in a claim by a Claimant law firm for defamation against Trustpilot in respect of reviews made by third parties on the Trustpilot website.
The preliminary issues determined by the Judge were:
“a. the natural and ordinary meaning of each of the Reviews 1-20 identified in the Amended Particulars of Claim (“statements complained of”); and
b. in respect of the statements complained of: (i) whether the meaning found is defamatory at common law; (ii) whether it made a statement of fact or was or included an expression of opinion; and (iii) insofar as it contained an expression of opinion, whether, in general or specific terms, the basis of the opinion was indicated.”
Context
When considering the above issues, the Judge highlighted that the hypothetical reader of the reviews was, for the purposes of the case, within certain parameters. The Judge said:
“19. There was also no dispute between the parties that the hypothetical reasonable reader is likely to be a person with some interest in the Claimant’s business and who has looked for information about the Claimant on the internet. An internet search, for example through Google, will take that person to the Claimant’s profile on the Trustpilot Website. The reasonable reader will be a typical reader of the Trustpilot Website who will appreciate that each review is posted by a separate individual reviewer, based on that individual’s experience of interacting with the Claimant. It is not possible to tell how many reviews a reasonable reader will read on the Trustpilot Website, the order in which they will do so, or whether they will look at the information on the first page (with information about trust scores, rating or percentage of bad reviews).
- The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available…”
When determining the context in which the reviews should be considered, the Judge reminded herself of the recent judgment in Riley v Murray [2020] in which Nicklin J concluded the following:
“[16] The underlined passages [in Monroe v Hopkins at [37] to [39]] establish that the following material can be taken into account when assessing the natural and ordinary meaning of a publication:
- i) matters of common knowledge: facts so well known that, for practical purposes, everybody knows them;
- ii) matters that are to be treated as part of the publication: although not set out in the publication itself, material that the ordinary reasonable reader would have read (for example, a second article in a newspaper to which express reference is made in the first or hyperlinks); and
iii) matters of directly available context to a publication: this has a particular application where the statement complained of appears as part of a series of publications – e.g. postings on social media, which may appear alongside other postings, principally in the context of discussions.
[17] The fundamental principle is that it is impermissible to seek to rely on material, as “context”, which could not reasonably be expected to be known (or read) by all the publishees.”
Mrs Justice Tipples DBE found based on the above that:
“The principles are well established and straightforward: extrinsic material is only legitimately admissible as context if it is known to all readers. Therefore, given the nature of the Trustpilot Website, I agree with the Claimant that the only material which is legitimately admissible as context is the review itself. All other reviews which have been read by only some readers are inadmissible.”
Fact or opinion
As for whether each of the comments were fact or opinion, the Claimant had alleged that the reviews contained allegations of fact rather than opinion and the Defendant disagreed with such a contention. The Judge found:
“38. The Trustpilot Website is an open platform on which anyone can write a review of their experience of the Claimant and, in doing so, rate the Claimant’s performance. They do so in their own words and the language used, and the tone of that language, will no doubt reflect the quality of that experience. The narrative provided by reviewers in these circumstances is one that the reasonable reader will understand as factual and when the reader sees that the Claimant is described as a “scumbag” or “absolutely shocking” or “run by parasites” the reasonable reader will understand that as the reviewer’s opinion of the Claimant, based on the facts relating to their experience of the Claimant recounted by the reviewer.
- I agree with the submission made by Mr Browne KC for the Claimant that the addition of comment in relation to a reviewer’s own experience does not turn that experience into comment/opinion and the expressions of opinion identified in the Defendant’s pleaded meanings are too extensive. Nevertheless the statements complained of are, in every case, a statement of fact, which include an expression of opinion, which the Claimant has failed to recognise in its pleading meanings.”
Defamatory or not?
The Judge set out that in the case of a claim in defamation brought by a company (as in this case), the test is slightly modified, as follows:
“…an imputation will only be actionable by a corporation if it has a tendency to cause a substantial adverse effect on people’s attitudes towards the company.”
There were 20 reviews that included negative comments about the Claimant, such as “absolute liars”, “scammers”, “shocking experience of being harassed” and “total scumbags and charlatans”. The judge determined the meanings of each of the reviews in turn and found that all 20 of the meanings found were defamatory in nature. The Judge said:
“Accordingly, in determining whether the statement complained of in one review is defamatory of the Claimant at common law, all other reviews on the Trustpilot Website are irrelevant. As is set out below, each of the statements complained of is defamatory of the Claimant at common law. This is because the words complained of would lead ordinary people of ordinary sense to the opinion that the Claimant conducts its business of debt recovery in an improper manner, and will have a substantial adverse effect on people’s attitudes towards the Claimant.”
The case will now proceed for a determination as to whether any of the statutory defences are available to the Defendant. The obvious defences likely to be pursued by the Defendant will most likely be honest opinion/substantial truth of the comments made. This is likely to take a laborious review of the circumstances leading to each of the reviews being posted.
How can we help?
Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us