The rise in popularity of consumer review platforms has led to a shift in the reputational management of businesses and has become an important step for customers to determine the quality of service before purchase. However, the lack of verification for the review processes subject it to risks of abuse, such as false, malicious, and commercially motivated allegations, and, sometimes, may even fall into the category of defamation.
Under the Defamation Act 2013, a claimant must demonstrate that the publication has caused, or is likely to cause, serious harm to their reputation. In cases involving defamatory consumer reviews or online posts, this will often require evidence of significant financial or commercial damage. This threshold is intended to prevent speculative or disproportionate claims from progressing to litigation where the alleged harm is minimal or unsupported by evidence.
The defence of Honest Opinion
When considering a defamation claim, one of the most important factors to consider is whether the key statements made in the review are factual or whether they are opinions. Factual allegations are of a nature that can be disproved with opposing evidence and therefore can be defamatory. However, opinions with wording such as “unsatisfactory” or “not to [someone’s] taste” are usually subjective evaluations that fall under the defence of honest opinion.
The courts will generally distinguish between defamatory statements and expressions of opinion, exaggeration or ordinary consumer commentary. Hyperbolic or exaggerated remarks, where they would reasonably be understood as opinion rather than factual allegations, are unlikely to be considered sufficient evidence to establish defamation. Low ratings or isolated expressions made by individual consumers without any suspicion of conspiracy or organisation are rarely sufficient to satisfy the threshold of a defamation claim. That is unless a causal link could be demonstrated between the defamatory review and serious damage to the business’ reputation, revenue or other aspects (e.g., employees’ wellbeing).
Pre-action protocols
Even where the evidence and nature of the defamatory statements appear to support a potential claim, businesses should first consider the requirements of the Pre-Action Protocol for Media and Communications Claims. This may involve engaging in pre-action correspondence and pursuing any available platform-level reporting or removal procedures before commencing formal legal proceedings. Not only are these remedial measures much less costly than legal proceedings, they tend to be effective ways to achieve swift removal of the offending material without the parties ever having to resort to litigation. Moreover, the failure of a business to engage in pre-action correspondence may expose them to unnecessary costs after litigation. Even where a claimant achieves a favourable outcome, any damages awarded may be substantially affected by the legal costs involved, particularly if the dispute has escalated due to an adversarial approach between the parties.
The legal regime for defamation was not constructed to suppress legitimate criticism. It is important for businesses to be able to differentiate between that and genuinely malicious publications. The serious harm threshold must be the central consideration in relation to the course of action taken. Therefore, in order to correctly determine the course of action in these circumstances, specialist legal advice should be sought promptly.
If you believe your business has been the subject of unfair allegations or potential defamation, please contact Nath Solicitors on 0203 983 8278 or get in touch with the firm online.