When bad reviews get worse: online review sites and the Defamation Act 2013
Rachel Garton, 1st October, 2014
Solicitor, Rachel Garton takes a look at online review sites, when reviews are defamatory, the provisions of the Defamation Act 2013, and what your business can do in response to a bad review.
Many a disgruntled internet user has taken advantage of the anonymity of the web to make a malicious or false statement about another individual or business on a review website, forum or on social media.
Defamation is the publishing of a statement which lowers an individual or company in the estimation of right thinking members of society. It encompasses libel (written defamation such as by a newspaper) and slander (spoken defamation such as slander on the radio or television).
With online media, there are countless online platforms and forums on which users, often anonymously, are able to post defamatory comments which could be harmful to the reputations of others.
Popular review sites like Trip Advisor generate enormous amounts of this type of online content, which is known as User Generated Content (UGC). On the plus side these sites can be a source of free marketing/promotion and a channel where users can legitimately and truthfully flag up poor experiences. The flip side is that user reviews can be factually incorrect or even malicious.
So what is the legal position surrounding defamatory comments made by users of websites? An ill-considered defamatory statement posted on the spur of the moment to thousands of other website users could have serious consequences. Not only for the target of the comment, but potentially for the website operator and the user.
Clearly the author of the comment is liable for defamation. But the website has also been party to the “publishing” of the statement. What if the website user can’t be identified or found? What if the website operator fails to take down defamatory comments or otherwise take action?
The new Defamation Act 2013 (“The Act”) specifically addresses the issue of defamation and UGC, and introduces a procedure for defamation victims to follow with website operators. It provides clarity on when a website operator will become liable for defamation. The Act brings together and codifies some of the case law on the subject. It also introduces the new defences to defamation which are Truth, Honest Opinion and Public Interest. You can find out more about the procedures below.
The Act also introduces a rule that a statement will not be defamatory unless it causes or has caused serious harm to an individual’s reputation.
For businesses, serious financial loss must also be caused or likely to be caused for a claim to be brought. Serious financial loss is not defined and there is little guidance from the courts yet on what constitutes serious harm or serious financial loss.
The case of Cooke and Anor v MGN , which was a defamation claim against the Mirror Group was the first judgment on “serious harm”. But the judgment offered little guidance on what evidence is needed to prove serious harm. It is necessary to assess the harm on a case by case basis.
The outcome of defamation claims has always been difficult to predict, and the new provisions in the Act appear to raise the threshold on harm.
Section 5 of the Act: websites and user generated content
There is the problem of anonymity. While the Act does provide some protection for website operators, it only offers that protection if operators help victims of defamation to find the user that has defamed them.
This is a significant new obligation on operators. If they want the protection of the Act and don’t wish to become liable themselves for defamation, operators are obliged to authenticate the user’s identity and contact information, keep that information, and be able to pass enough information on to a victim to enable that victim to issue court proceedings.
This appears to mean that an email address would not be enough and a real name and postal address would be required.
What is the procedure for a defamation victim to follow?
Under the Act and accompanying Regulations a Notice and Takedown procedure has been implemented under which a victim may issue a Notice of Complaint to the operator of the website.
The Notice of Complaint must contain certain information. The operator has an obligation to process the Notice within forty-eight hours of receipt (excluding non-business days).
If the author is not known and can't be contacted, the Operator has 48 hours to take down the statement. In most cases that may well be the end of the matter.
If the Author is known and is contacted by the Operator, the Author has until midnight on the fifth day after the Notice was sent to respond. The Author may refuse to allow the statement to be taken down. In this case, unless they consent for the Operator to release their details to the victim, the victim will need to get a court order to obtain the Author’s details.
A victim is expected to follow the Notice procedures before issuing any court proceedings for defamation.
When is a website operator liable?
An operator can be liable for the defamatory comments of a user only if it fails to follow the procedures under Section 5 of the Act.
For example, if an operator fails to properly respond to a Notice of Complaint, and the Author can’t be sufficiently identified to bring legal proceedings (as mentioned above). This is an incentive on operators to obtain full information about their users.
Need advice? We can help you
Gosschalks can advise on defamation, the procedures to follow when the source of the defamation is User Generated Content, and the preparation of a Notice of Complaint.
You can find out more about how we can help you here.