By Daniel Jennings, Wright Hassall Solicitors.

 

Recent press stories of individuals being threatened with jail for writing negative reviews on TripAdvisor may have captured the headlines, but the position is far from clear for those who suspect they are the 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.

If this relates to harming the reputation of a business, this would only be considered as ‘serious harm’ if the comment was likely to cause financial loss to the company. This has been the claim in recent cases, with businesses arguing the online comments have been deliberately dishonest and unjustified.

For someone to claim defamation they must prove that the defamatory words have been published to more than one person.

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 a reputation in the eyes of right-thinking members of society generally; causing a person (or business) to be avoided because of the words used or exposing a person to hatred, contempt or ridicule.

However, just because an online business review is negative it does not necessarily mean it is defamatory.

One of the defences to any claim in defamation law is that the words used were an honest opinion. As long as the words were a statement of opinion, which a genuine person could have held based on facts, they are free to post any opinion they like.

However, if you have any concerns or suspect a review contains exaggerated opinions, or comments that cannot be justified, with the sole intention of causing your business harm, it might be time to take 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, e.g., 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 there have been some high-profile defamation claims over recent years, which have added to the general rise in claims seen in recent years.

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 express an opinion about someone or a business that could be capable of bearing a defamatory meaning, make sure you can prove the words were true, in substance and fact, or that your words were honest comments made without malice on a matter of public opinion.

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.

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.

Most businesses now actively monitor their online reputation and welcome honest customer feedback, believing genuine criticism can help them improve, but many will also take action to protect and defend their reputation when they believe it has been unfairly maligned.

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

Daniel is a partner in the commercial litigation team at Wright Hassall Solicitors, a top-ranked firm in Warwickshire, England. Daniel 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.

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