Self defence

Commercial litigation solicitor Jennifer Rhind advises how to deal with online defamation against your clinic

Earlier this year, media outlets covered the story of law firm Summerfield Browne’s previous client having to pay them £25,000 in libel damages for a negative Trustpilot review: “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.

The case highlighted what lengths a business will go to when it considers a bad review has crossed the line and is defamatory.

The law in relation to defamation is contained within the Defamation Act 2013. For a statement to be defamatory, the publication of the statement must have caused, or be likely to cause, serious harm to reputation. If the suspected defamation relates to harming the reputation of a business, the business will need to show that it has caused or is likely to cause serious financial loss in order to be regarded as “serious harm”.

NEGATIVE OR DEFAMATORY?

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

When reviewing online comments in relation to your business, 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. While the author of an opinion might not consider their words to have 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.

As a business operating in the modern, digitally-connected world, you must actively monitor your online reputation, and as well as welcoming honest customer feedback, you should consider action to protect and defend your hard-earned reputation when you believe it has been unfairly maligned. If someone, even anonymously, expresses an opinion about your business that you believe is defamatory, 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.

JENNIFER RHIND

Jennifer Rhind is a solicitor in the commercial litigation team at Wright Hassall Solicitors, based in Warwickshire. She advises clients on all aspects of commercial litigation and dispute resolution, specialising in defamation and harassment, professional negligence claims and costs.