7th June 2016
As more and more business is conducted online, customers are choosing to turn to the internet in order to share their experiences of the service they have received. This ranges from rating their plumber to ranting about poor service from their utilities provider.
Positive online reviews can increase traffic to your website, 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 to, or even disastrous for, your business and your brand may be irreparably damaged. What action can you take if negative reviews are published about your business?
Tim Newsome, head of dispute resolution at Myers & Co in Burslem, Stoke-on-Trent, advises on when you can take action regarding negative statements published online.
Even though it may be negative, if the statement is true then it is unlikely that you would be able to take any legal action regarding it. You need to consider how best to limit the comment’s impact.
A prompt response using the right tone can often be more powerful than the initial comment. There are mechanisms on most social media sites that allow businesses to respond to user-published comments. If you respond to the comment with an apology and an offer of compensation that may reassure other users who view the original post.
Sometimes it is better not to respond, as engaging with a problematic user who is posting improper or unlawful content can aggravate matters. Where a particular statement is not getting much attention online, allowing that statement to go relatively unnoticed and quickly pass into a website’s historic content can often be the best way to manage the situation. Unfortunately, there is no easy way of deciding whether or not to respond.
A statement may be defamatory if it is untrue and has caused or is likely to cause your business serious financial loss.
The Defamation Act 2013 overhauled the law in this area and introduced a requirement that for a defamation claim to be successful the complainant must show that they have or are likely to suffer ‘serious harm’ as a result of the untrue statement. For a business, it is necessary to show, on the balance of probabilities, that the defamatory material in question has or will probably cause serious financial loss. In considering serious harm, a court will have regard to all of the relevant circumstances, including events after publication of the comment.
Examples:
‘Supplier X has carried out defective work’: a statement of fact, if untrue, may well be actionable. The author of the review or comment may have a defence if the content is 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 serious financial loss if an untrue comment is made about a service that you no longer provide (you would need to show that it would likely affect your sales of other services).
‘Given the issues I experienced, I believe Supplier X is incompetent’: a statement of opinion may well not be actionable. It is a defence to a claim if the material constitutes an honest opinion. 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. In the example, to have a defence the author would need to show that they genuinely experienced issues, and based on those issues they honestly concluded Supplier X was incompetent.
Where someone is subjected to a course of conduct that causes them distress or alarm this may give rise to a cause of action under the Protection from Harassment Act 1997. This can result in a civil claim, but also potentially a criminal action.
Harassment requires a course of conduct over a period of time, and so one negative review would not amount to harassment. A series of negative reviews, or a negative review coupled with other distressing conduct, may amount to harassment. While actions for harassment are less common than defamation, harassment may be available in situations where an action for defamation is not. Online acts such as trolling or cyber-bullying may fit into this category.
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. It can be that such disputes can be resolved without the need to start legal proceedings.
Most social media platforms and review sites have a policy prohibiting the use of their service to commit infringement of third party rights, harassment or defamation. It is also possible to try to get the search result removed from 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. There are defences available to website operators and hosts but these are complex and, if they do not comply with the regulatory provisions exactly, they risk losing their defence to any future action.
If a case does have to go to court, you could ask for:
As with all court proceedings there are costs consequences to consider and it is not advisable to take any action without having sought specialist advice beforehand. In practice, these cases are often resolved without needing to go to court and the material is removed on the basis that there is no further claim for compensation. While a lack of compensation may be disappointing, you will have achieved what you set out to do in having the offending material removed.
There is a one-year limitation on making a defamation claim 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 libellous, contact Tim Newsome, head of dispute resolution at Myers & Co in Burslem, Stoke-on-Trent, on 01782 525011 or email tim.newsome@myerssolicitors.co.uk.
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.
