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Online defamation – a growing risk for businesses?

Before you act against someone who’s bad-mouthed your business, remember there’s a very fine line between statement of fact and statement of opinion, says Jennifer.

IF a business believes a negative online review has crossed the line and is defamatory, then it’s possible that the person who posted the statement could be forced to pay libel damages. This was recently seen in the headline story of a law firm’s previous client having to pay them £25,000 in damages for a negative Trustpilot review.

This highlights what a business can do when it considers a comment to be defamatory. The law in relation to defamation is contained within the Defamation Act 2013, and for a statement to be considered defamatory, it must cause or be likely to cause, serious reputational harm.

In these circumstances, a business will need to show that the reputational harm has resulted in serious financial loss. Once this has been proved, then the statement can be regarded as causing ‘serious harm’.

How a business should react
For some businesses, dealing with bad online reviews or comments on Facebook and Twitter can be stressful, but just because the comments are not good, they are not necessarily defamatory.

Thanks to the impact of the pandemic and the resultant torrid last twelve months, once the dust has settled, it is possible that many harsh statements may find their way onto the internet, but even so, defamatory publications remain unacceptable.

Many people believe they can express any opinions they want about a business and in fact, one of the defences to a claim in defamation is honest opinion.

An individual seeking to use this defence would need to establish the words complained of as being defamatory were a statement of opinion which indicated as such and which an honest person could have held.

However, if the statement is deemed to be a statement of fact, this defence would be unsuccessful. 

There is a very fine line between statement of fact and statement of opinion.

For those businesses reviewing online comments, you should always consider what meaning or meanings the words are reasonably capable of bearing. For example, words can be defamatory not only in their natural and ordinary meaning but also through innuendo.

Whilst the author of an opinion might not consider their words to bear a defamatory meaning, there are in fact various factors that need to be considered such as whether the author has over-elaborated the position and what the ordinary reasonable reader would consider it to mean.

Further, as a general rule an individual will not escape liability just by claiming they are simply repeating something that someone else told them unless they can prove the subject matter of the comment is true.

Repeating someone else’s defamatory statement is just as bad as if you had made the defamatory statement yourself.

If you have any concerns or suspect a review contains exaggerated opinions, or ones that cannot be justified, with the sole intention of causing your business harm, it might be time to take legal advice.
Social media and review sites pose a risk.

The case in the introduction references the law firm Summerfield Browne who sought damages against a client who left a defamatory review on Trustpilot: ‘A total waste of money, another scam solicitor’.

Although the defendant sought to argue this was his honest opinion, the Court awarded Summerfield Browne damages of £25,000 and costs, plus an injunction banning the defendant from repeating his allegations. The Court also ordered that Trustpilot should remove the review from its website, although this is likely to be challenged by Trustpilot as they were not involved in the proceedings.

Conclusion
From a business perspective, it is crucial that you monitor online comments on social media channels and other forums, as there may be defamatory statements that cause serious harm to your business in a digitally connected world. While honest customer feedback should be welcomed, there is a fine line between a fair opinion and an unwarranted attack on your business and its reputation.

Even if the person is posting anonymously, a negative statement that you consider to be defamatory could be damaging for your business. If you suspect an online comment to have crossed the line, then you should consider obtaining legal advice from a specialist, particularly in light of the potential defences which may be available to an individual faced with a defamation claim.

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