Recent press stories of individuals being threatened with jail for posting negative reviews on TripAdvisor has captured the headlines, but the position is far from clear for those who feel as though they have been victims of online defamation.
The law in relation to defamation is contained within the Defamation Act 2013, which came into force in January 2014. It outlines that for a statement to be defamatory, the publication of the statement must have caused, or be likely to cause, serious harm to reputation.
In the world of business, a statement is only considered defamatory when the damage caused to an organisation is likely to cause them financial loss. Businesses have argued this in recent times, suggesting that online comments were untrue or unjustified attacks on their reputation.
For someone to claim defamation, they must prove that the defamatory words were published to numerous people, not just one individual.
The significant point when considering whether the words published are defamatory, is that they must cause injury to a person’s (or business’) reputation.
This can be by diminishing an organisation’s reputation in the eyes of right-thinking members of society; causing the company to be shunned or avoided by members of the public because of what was said.
However, just because an online business review is negative it does not necessarily mean it is defamatory.
One of the main defences of a defamation claim is that the statement was an honestly held opinion, which an individual could have genuinely held based upon the facts and information available.
However, if you do suspect a review of being purposely designed to cause financial or reputational harm to your organisation, then it could be a good idea to seek legal advice.
For those making any comments or expressing an opinion, especially online, you should always consider what meaning or meanings the words are reasonably capable of bearing, eg words can be defamatory not only in their natural and ordinary meaning but also through innuendo.
Repetition is no defence
It should be remembered that sharing or repeating a defamatory opinion made by somebody else is not a valid defence.
No one is immune from a defamation claim and over the years there have been some high profile examples of defamation cases in the news.
One such example is that of ‘The Lord McAlpine of West Green v Sally Bercow’. Lord McAlpine was a former Conservative politician and Ms Bercow is the wife of the speaker of the House of Commons.
The case revolved around a tweet posted by Ms Bercow following a Newsnight broadcast, which falsely linked an unnamed ‘senior Conservative politician’ to sex abuse claims. Although Lord McAlpine’s name was not mentioned, he was wrongly identified afterwards on the internet and two days later Ms Bercow tweeted; ‘Why is Lord McAlpine trending? *innocent face*.’
Ms Bercow had over 56,000 Twitter followers at the time of her tweet, which was described by Lord McAlpine’s legal team as a bigger readership than many regional newspapers.
Lord McAlpine issued proceedings claiming that Ms Bercow’s tweet in both its natural and ordinary meaning and/or by way of innuendo, amounted to an accusation that he was a paedophile who was guilty of sexually abusing boys living in care.
The judge ruled in favour of Lord McAlpine and Ms Bercow agreed to pay an undisclosed sum for damages (which have reportedly been given to charity), together with his costs. Ms Bercow also withdrew the allegations and undertook to never repeat them.
Consider before commenting
If you are considering writing something that could be capable of breaching defamation laws, then make sure you can prove that the opinion held is true in substance and fact, or that your words were honest comments made without malice.
Be cautious when sharing someone else’s review. You might think it’s funny at the time, but you could be opening yourself up to a separate claim of defamation by doing so – remember, repeating a defamatory statement originally written by somebody else is not a valid defence.
In conclusion
Defamation is a serious matter and can be very costly for those found liable, even if the comments were made in haste online and removed just as quickly.
Many opticians welcome constructive criticism or honest feedback, believing that such reviews can help them improve their services. However, if the post or review looks suspiciously harsh or seems to be an unjustified attack on the reputation of a business, owners may take legal action against the author.
Regardless of whether you are the person or business who has been defamed, or you are faced with a defamation claim for an online comment made, you should seek specialist legal advice as soon as possible.
Daniel Jennings is a partner in the commercial litigation team at Wright Hassall Solicitors. He advises clients on all aspects of commercial litigation and dispute resolution, specialising in commercial contract disputes, finance litigation, investment and tax litigation, partnership disputes and defamation.