A review, a post or a comment can circulate quickly. As much as fantastic posts, reviews and comments on social media can be great for businesses, a poor review or a negative post or comment can be hugely damaging. But is a bad review defamation or simply an annoyance?
Is a Bad Review Defamation?
Simply stating an opinion does not constitute defamation – if this was the case, all bad reviews would result in defamation cases.
Negative reviews are not defamatory unless the content is untrue and its publication has caused or is likely to cause significant harm to the business’s reputation, meaning it has caused or is likely to cause the business serious financial loss.
What is defamation?
Whilst there is no strict definition of what defamation is, there are some key criteria that must be met in order to pursue a defamation case. The statement (or, in this case, review), must:
- Be untrue;
- Be visible to multiple people – such as posted in an online forum;
- Lower the complainant’s estimation of right-thinking members of society generally;
- Cause serious harm or financial damages.
Proving Online Review Defamation
Before any defamation case can go to court, the claimant should follow the Pre-Action Protocol for Defamation, including writing a Letter of Claim, allowing the defendant to respond and, in most cases, attempting Alternative Dispute Resolution.
A defamatory online review constitutes a form of defamation called ‘libel’, which refers to a false written statement (as opposed to ‘slander’, which is typically a spoken statement).
Almost every business receives some negative reviews at some point, so proving that a negative online review is defamation can be complex. The burden of proof is placed on the defendant (the person who left the review) to prove that their review was true. Typically, the defendant will need to find a way to prove the following three things:
- Legitimacy
The key thing that must be proven is that the review was true – any statement made in the review against the business must be fact, and the defendant should be able to prove that it was.
- Public interest
A defendant should truly believe that their review is in the public interest – for example, if the reviewer ordered a gluten-free loaf of bread and was given gluten, then it would be fair that they use a review to relate their (true) experience and warn people about potential health risks associated with that business.
- Honest opinion
This may be the most difficult one to prove, as the defendant must be able to prove that the review they left was their honest opinion and not, for example, fulfilling a personal vendetta by trying to bring down a business. An opinion is not defamation if it is the defendant’s true belief – reviewers must be able to leave negative reviews where they honestly believe they received a poor experience.
Defamatory Google Reviews
When they’re positive, Google Reviews can be a major boost to a business as they can help you interact with customers and increase your footfall. Even negative reviews have their benefits if they’re honest and reasonable – they can help you see areas your business can improve.
It’s no secret that it is the most popular search engine, but how does Google know if a bad review is defamation?
Google has an automatic spam filter that aims to detect reviews that are not authentic, relevant and useful, but it is not perfect and defamation in a Google review may not get picked up. If a business receives a defamatory Google review, they can ask Google to take it down, but it will only do so if the review breaks one of Google’s policies. They will not take down a review just because a business doesn’t like it or if there is a debate about facts (as they have no way of discerning who is in the right).
Removing a Defamatory Online Review
Pursuing a defamation case over an online review is often very difficult and can be a drawn-out process.
If they have the ability to do so, the best course of action for a business is to simply remove the libellous review. When it comes to defamatory Google reviews, you can report them to Google with your reasoning and the matter will be investigated. You can also report reviews on Trustpilot, and the review will be blurred from the site while it is investigated.
Example
Let’s take, for example, somebody who eats at a small local restaurant and, unfortunately, the steak isn’t quite medium rare, and the service wasn’t quite as fast as the drive-thru around the corner. Fed up, hungry and a few pounds worse off, the customer shares their experience on social media or a review platform.
The restaurant owner is up in arms at the customer’s comments. The steak was cooked perfectly and the service that night was fantastic! The customer’s comments could have a serious impact upon the business of the small restaurant.
But was the customer’s online review defamation? Or was it just an honest appraisal of their experience? It is vital to look at exactly what was said.
- Is the quality of food or standard of service objective, or subjective to the reviewer’s opinion?
Can either the reviewer or defendant prove the quality of food or standard of service?
- How do you demonstrate that the statement was untrue?
Was the customer even real? Could it have been made by someone with a clear intent to cause harm to the business? If the customer wasn’t real, how do you prove it?
- How do you demonstrate that financial loss has been caused as a direct result of the statement?
Proving a case of defamation is no mean feat and there are many different angles to consider. Pursuing a case can be drawn-out and expensive, so the decision to do so should not be taken lightly.
We should also consider the customer who had an innocent rant on their social media, or left an honest but negative review and who may now be faced with a defamation claim being issued against them. Should they be prevented from airing dissatisfaction in terms of service from a business? Is the bad review defamation or a fair review of what they considered subpar service?
Defamation is a technical area of law, and the Newtons dispute resolution team are experts in dealing with such matters. Not every bad review is defamation but the ones that are can be very damaging. If you require any advice and assistance, please contact us today.