Defamation, a good way to go Bankrupt Quickly

The tort of defamation has had something of a societal revival in the wake of Depp v Heard, and Vardy v Rooney. Lots of people are wondering how these celebrity cases impact them and what they can and can’t say on social media.

The impression that can be created is that defamation is a glamourous area of law, associated purely with celebrities, salacious newspaper articles and subsequent outrage, resulting in a battle of high society giants in Court. The reality is that we all have the power to defame, and in the modern internet era this has become an ever-lurking danger which is most potent when leaving reviews online.

The basic legal position is that defamation occurs when the words used lower the claimant in the eyes of right-thinking members of society, and/or they cause them to be shunned, expose them to hatred, contempt, or ridicule. Furthermore, the words must refer to the claimant, and they must have been published, i.e., communicated, to a third party. The publication must have caused, or be likely to cause, serious harm to the reputation of the claimant.

If you ever write reviews online, and you don’t pull your punches when giving criticism, then this could easily apply to you.

Just last year, in Summerfield Browne Ltd v Waymouth, the client of a law firm was ordered to pay a whopping £25,000 in damages after writing a review online, on Trustpilot, that his experience with the law firm had been a ‘total waste of money another scam solicitor’.

This illustrates the danger of the written word in leaving a review. Even a short, seven-word sentence can result in a hefty Court order against you, for what you probably typed up in a foul mood at 11 PM after an unsatisfactory experience with your solicitors, dodgy curry, disappointing holiday or whatever else it might be.

However, the danger of leaving a review does not apply solely to the creator of the defamatory statement.

If you provide a service online, then you, as the internet service provider, or ISP, could be liable simply for making the defamatory statements of others available on your platform.

However, the danger has been somewhat lessened for ISPs in the wake of the Defamation Act 2013. Section 5 provides that a defence arises for website operators when they can show that they did not post the statement on the website.

You might think that this acts as a total shield for ISPs. However, this defence is not available where the claimant is unable to identify the person who actually posted the statement, and has given the operator notice of the complaint.

The situation is worse if you, as the publisher, have adopted the words of the other person. For instance, if you published a statement quoting a conversation with a third party, perhaps that ‘A told me that B had murdered C’. In that situation you would be liable under defamation unless you could prove that B had indeed murdered C, instead of merely proving that A had told you their story.

This is a very high burden, and ISPs, news publishers and individuals should all be cautious when quoting conversations with third parties.

The good news is that by taking a few precautionary measures we can all carry on expressing ourselves online, or ranting, without risking a lawsuit.

First, for the author of a statement. Make it clear that you are making an honestly held opinion and never, ever, ask for money in exchange for the removal of your comment online. This completely undermines your position that you were expressing an honestly held opinion and acting without malice.

Secondly, be honest, truth is a complete defence to defamation. Therefore, a negative review will only be defamatory if it is a false statement which is likely to cause financial loss to the business in question.

Finally, for the website operator. Make it clear that it is a third party, not you, who is posting the statement, and remain neutral. If you are seen to have colluded with the author, or even incited them to post the comment, then you will be deemed to have acted with malice and will not be able to use the Section 5 defence which is available when a third party has posted the statement.

Most importantly, ensure that anyone posting on your platform can be properly identified on the website. Where the person who has been defamed is able to identify the poster of the statement, you, as the website operator, can rely on the section 5 defence and allow the material to remain online whilst the litigation is ongoing.

Overall, the most important piece of advice is to use common sense. If you do have a complaint, go through the proper feedback processes available on most companies’ websites and, if you do decide to leave a review online, keep it accurate and honest and make it clear it is an honestly held opinion, rather than gospel.