Jennifer Rhind, Solicitor in the Commercial Litigation Team at Wright Hassall Solicitors, explores how far customer reviews are legally protected and the recourse firms have against claims that they feel are insubstantial.
When a business or individual interacts with the firm at any point on their journey to becoming a client, most will want to discover more about the firm, its people and its reputation. Typically this will involve an online search, which will throw up Google or Trustpilot reviews.
How a firm responds to matters, the accuracy of advice, the quality of service and the approach of the lawyers, are all likely to be summed up on review sites and unfortunately, the unhappy client is more likely to wax lyrical than the contented one. Prospective clients of any business, in any sector, will consider these reviews a valuable source of information, helping shape their perception about a law firm and its suitability to handle the challenge for which they are seeking advice.
Poor reviews are often not what they seem, with the all-important context missing. Bad ones can cross the line from the reasonable opinion of the author into potential defamatory statements, which can have serious consequences for the target of the review, tweet, post or comment.
But just because a client feels they can express their opinion with impunity and say anything they want about the service received, it does not mean a business has to accept the reputational damage if it believes there is no substance to the claims.
Businesses learning to fight back
No-one is immune from a defamation claim and there have been some high-profile defamation claims over recent years, which have added to the general rise in claims.
The story of law firm Summerfield Browne seeking damages against a previous client who left a defamatory review on Trustpilot saying the solicitors were: “A total waste of money, another scam solicitor”, is well known, but offers hope for other businesses.
Poor reviews are often not what they seem, with the all-important context missing.
Although this previous client argued this was his honest opinion, the Court awarded Summerfield Browne damages of £25,000 and costs, plus an injunction banning the previous client from repeating his allegations, whilst ordering Trustpilot to remove the review.
Trustpilot denounced the actions of the law firm, claiming the Court’s decision aimed to curtail the consumer’s right to freedom of expression and the firm has since received a host of bad reviews, which are likely not even from customers - just people standing up for the little man, as they see it.
This is a growing problem for businesses in all sectors, with a recent Trustpilot report detailing its removal of more than 2 million fake or harmful reviews out of a total of 39 million reviews left during 2020 alone. The vast majority were dealt with by automated software.
When statements cross the line
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.
For example, if the individual can show there is substantial truth to the alleged defamatory statement, a claim in defamation is unlikely to succeed. Just because a statement is bad for business, it does not automatically mean you can do anything about it.
If someone, even anonymously, expresses an opinion about your business that you believe is defamatory, you should consider obtaining legal advice from a specialist.
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 it is a business that suspects its reputation has been defamed, it will need to show that it has caused or is likely to cause the business to suffer serious financial loss in order to be regarded as ‘serious harm’.
A partner having to deal with bad online reviews or damaging comments on social media about the firm or its people can find it both stressful and time consuming, but just because the comments are unpleasant or personal in nature, it does not automatically mean they are defamatory.
The public’s growing desire to share their experiences and the increasing importance consumers place on reviews, tweets, posts, comments etc., as they undertake research during the buying process ensures there is a growing risk of online defamation - which should not go unchallenged.
Reacting in an appropriate manner
The pandemic appears to have been good for many law firms, but success can bring envious criticism and claims of law firms benefitting from the wider misery endured by the public in lockdown. This can embolden keyboard warriors to vent, believing they can express any opinions they want about a business and in fact, one of the defences to a claim in defamation is honest opinion.
However, anyone trying to use this defence would need to establish that the words complained of as being defamatory were in fact a statement of opinion, which indicated as such and which an honest person could have held, based on facts that existed at the time the statement was published.
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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.
Those within the business responsible for reviewing online comments should always carefully consider the meaning of the words used. Not just in their natural and ordinary meaning, however, as words can be defamatory through innuendo or implication.
Whilst the author of an opinion might not consider their words to be defamatory, there are various factors to consider, such as whether the author has over-elaborated the position and what the ordinary reasonable reader would consider a statement to mean.
Further, as a general rule an individual will not escape liability just by claiming they are simply repeating something someone else told them, unless they can prove the subject matter of the comment is true.
In conclusion
A business operating in the modern digitally connected world must actively monitor its online reputation. It should welcome honest customer feedback, but be ready to act to protect and defend a hard won reputation if it believes it has been unfairly maligned.
