When does a negative statement constitute defamation and what you can do to protect the reputation of your business.
In a world where business is increasingly conducted online, customers are choosing to turn to the Internet in order to share their experiences of all manner of commercial transactions. This ranges from rating their plumber to complaining about poor service from their utilities providers.
Positive online reviews can increase traffic to your site, and improve the trust that customers have in your products and services. They also build confidence in your brand.
However, negative reviews can be detrimental or even disastrous for your business, and your brand may be irreparably damaged. While people are entitled to their own opinions and it is impossible to please everyone all of the time, should false or malicious comments online be tolerated?
A statement may be defamatory if it is untrue and has caused or is likely to cause your business serious harm. Under section 1(2) of the Defamation Act 2013 (‘the Act’), a body trading for profit must, in order to establish serious harm, show actual or likely serious financial loss; but a natural person does not have to satisfy that further requirement.
The term ‘defamation’ covers libel and slander. Both concern the publication of defamatory material, that is, something that adversely affects a person’s reputation.
The distinction between the two in the context of the Internet can sometimes be blurred. Broadly speaking, libel concerns “lasting” forms of publication such as print, online or broadcasting. Slander concerns more transient forms such as spoken words or gestures.
Libel is the publication in permanent form of a defamatory statement. Slander is its publication in transitory form. It is now generally accepted that defamatory statements on web pages are to be regarded as libel.
Generally, If it is said or spoken aloud, it is slanderous. The Act overhauled the law in this area and changed the criteria for what was required in order to bring a claim for defamation. It introduced the requirement for there to have been serious harm caused to the reputation of the claimant. For a business, it is necessary to show, on the balance of probabilities, that the defamatory material in question has led to actual or probable serious financial loss to the Claimant.
In considering serious harm, a court will have regard to all of the relevant circumstances, including events post-publication.
There are some very specific defences which can apply to Internet defamation. These cover the actions of intermediaries and website operators.
Generally though the author of the review or material will have a defence if the content is true, or in the case of statements that have a degree of partiality as to the truth, substantially true. Even if some of the published material is untrue, if no serious harm or financial loss has been caused to your business, the author will still have a valid defence; for example, it may be difficult to prove probable serious financial loss if a review focuses on a product that you no longer stock.
It is also a defence if the material constitutes an honest opinion (formerly the defence of fair comment). If it is not someone’s honest opinion, or if it is someone else’s opinion and not the author’s, the defence fails, although in practice this is likely to be difficult to prove. For the honest opinion defence to succeed, it needs to be a statement of opinion, which indicates the basis of the opinion, and must have been made by an honest person, based on any fact that existed at the time the statement was made.
It is also possible to defend a claim on the basis that the statement was published in the public interest and on the basis of reportage.
The evidence you require may differ, depending on the nature of the defamatory content, but generally you need to be able to prove the following:
Proof of actual or likely damage to your business is required that:
Going to court or arbitration can be particularly costly. Before resorting to time-consuming and expensive court action, it is well worth seeking the advice of a dispute resolution lawyer. Often such disputes can be resolved without the need to start legal proceedings.
It is possible for victims of website defamation to try to get the search result(s) removed from Google and other search engines. If this fails, your lawyer may be able to put pressure on the author and also the website operator or host, where applicable, since both can be liable for defamation. The defences available to website operators and hosts are complex and, if they do not comply with the regulatory provisions prescriptively, they may risk losing their defence to an action.
If a case does have to go to court remedies that the court may grant a successful claimant include:
As with all court proceedings there are costs consequences to consider and it is not advisable to take action without having sought specialist advice beforehand. In practice, these cases are often resolved without needing to go to court. The material can be removed on the basis that there be no further claim for compensation. Whilst a lack of compensation may be disappointing, you will have achieved what you set out to do in many cases by having the offending material removed.
There is a one-year limitation which applies to making a defamation claim which starts to run from the date of the “accrual of the cause of action” (the date of publication) so it is advisable to seek legal advice as early as possible to explore the options in your particular case.
If you need help with removing an online review or other content that is libelous, contact us on 01708 229 444.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances. This article is based on the law as at May 2016.