When bad reviews get worse: online review sites and the Defamation Act 2013

Sam Thompson, 6th September, 2021

In July 2021, the High Court awarded the claimant £120,000 in damages for libel after two newspaper publishers failed in their public interest defence in the case of Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB).

In the same month the High Court ordered, in Hijazi v Yaxley-Lennon [2021] EWHC 2008 (QB) that a well-known public figure on the political right, to pay an 18-year-old Syrian refugee £100,000 after publishing two videos on a well know social media platform.

In this blog, Sam Thompson takes a fresh look at online review sites and considers the provisions of the Defamation Act 2013, when reviews are defamatory, and what steps can be taken against website operators in response to a bad review.

Defamation encompasses libel and slander. Both are about the publication of defamatory material, which is something that adversely affects a person or company's reputation. The distinction between the two is that libel concerns lasting publications such as print or online publications. Slander concerns spoken words or gestures. Remedies for slander will generally be available only if the claimant can show the slander has caused tangible damage. By contrast, remedies for libel may generally be available where harm is proven or is likely to have been caused.

Disgruntled internet users have long taken advantage of the anonymity of the web to make malicious or false statements about another individual or business on a review website forum or on social media. There are countless online platforms and forums on which users, often anonymously, can post defamatory comments which could be harmful to the reputations of others and businesses. Popular review sites like Trip Advisor generate enormous amounts of this type of online content, which is known as User Generated Content (UGC). In most cases these sites can be a useful and positive source of free marketing and promotion where users can legitimately outline positive and negative experiences. The converse is that user reviews can be factually incorrect, malicious, and defamatory sometimes resulting in reputational harm and commercial losses.

So, what is the legal position concerning defamatory UGC? An ill-considered defamatory statement posted on the spur of the moment, visible to thousands of other website users, could have serious consequences for the author, the platform on which it is published and individuals or businesses at which the publication is aimed.

Whilst the author of the comment is potentially liable for defamation. The website operator may also be held liable for having committed the act of publishing the statement. What if the author of the UGC cannot be identified or located for the purposes of starting a claim? What if the website operator fails to take down a defamatory comment or otherwise fails to act?

The law of defamation is largely based on the common law, but it has been substantially modified and codified by statute and regulation. The most recent example is the Defamation Act 2013 (DA 2013) and its associated regulations.

The DA 2013 came into force on 1 January 2014 and made significant changes to the law of defamation. It applies to all publications made from that date. It specifically addresses the issue of defamation in the context of UGC and introduced procedures for victims of defamation to follow when contacting website operators about offending content.

It also introduced a requirement that for a statement to be defamatory it must have caused or have the potential to cause “serious harm” to the claimant’s reputation. For businesses to meet this requirement it must be shown that “serious financial loss” has been caused or is likely to be caused.

Serious financial loss is not defined by the DA 2013 and there is very little guidance from the courts on what constitutes serious harm or serious financial loss. The case of Cooke and Anor v MGN [2014] EWHC 2831 was a defamation claim against the Mirror Group and was the first judgment on the serious harm requirement codified by the DA 2013. But the judgment offered very little guidance on what evidence is needed to prove serious harm.

Fortunately, the judicial guidance has developed since Cooke. In Lachaux v Independent Print Ltd [2019] UKSC 27, mentioned above, the Supreme Court acknowledged the DA 2013 altered the common law in that a statement that would previously have been regarded as defamatory because of its inherent tendency to cause some harm to the subject's reputation would no longer be so regarded unless it had caused, or was likely to cause, serious harm. Whether that is so is a matter of fact that can be established only by reference to the actual impact of the words used, not just their inherent meaning.

The provisions in the DA 2013 certainly raise the threshold on what might constitute harm and loss, but the outcome of defamation claims remains difficult to predict. It remains that each case must be assessed on its own merits and that requires a detailed analysis of the facts and the outcomes with careful application of the legal principles.

Section 5 DA 2013: Websites and User Generated Content

While the DA 2013 does provide some protection for website operators, in some instances that protection is lost if the website operator fails to assist the victim of defamation to find the user who authored the offending content by providing sufficient information relating to the identity of the author.

The DA 2013 can therefore impose significant burdens on website operators. If website operators want to benefit from the protections conferred upon them by the DA 2013, they should take steps to authenticate their users’ identity and contact information, keep that information and be able to pass enough information to a victim to enable that victim to issue court proceedings. Arguably, therefore, provision of an email address would not be sufficient.

What is the procedure a victim of defamation should follow?

The DA 2013 and associated regulations introduced a ‘Notice and Takedown’ procedure. A victim of defamation can now issue a ‘Notice of Complaint’ to a website operator. The Notice of Complaint must contain certain information. The website operator then has an obligation to process the notice within forty-eight hours of receipt (excluding non-business days). If the author is not known and cannot be contacted, the website operator has 48 hours to remove the offending UGC from the platform. In most cases that may well be the end of the matter.

If the author is known to the website operator and is contacted by them, the author has until midnight on the fifth day after the notice was sent to respond. The author may withhold their consent for statement to be taken down. In this case, unless the author gives their consent to the website operator to release their details to the victim of defamation, the victim will need to obtain a court order to compel disclosure of the author’s details.

A victim of defamation is expected to follow these outline statutory procedures, and in most cases the Pre-Action Protocol for Media and Communication Claims, before issuing any court proceedings for defamation.
When is a website operator liable?

A website operator can be liable for the defamatory comments of a user only if it fails to follow the procedures under Section 5 of the DA 2013 mentioned above and if a defence is not available to it. If an operator fails to properly respond to a Notice of Complaint and the author cannot be sufficiently identified to bring legal proceedings, the website operator may find it is liable. The jurisprudence has developed so to provide website operators sufficient incentive to ensure they have procedures in place to obtain and retain sufficient information about their users. This poses several issues and concerns in the context of data protection. However, these are outside the scope of this article.

Do you require advice? We can help you.

The DA 2013 sought to simplify the law and in many ways it has achieved this aim. However, the law remains complex and difficult to navigate. Gosschalks LLP can advise business and individuals on defamation, the procedures to follow when the source of the defamation is USG, and the preparation of relevant notices and legal proceedings.

You can contact Sam Thompson today on 01482 324252 / 07851 720565 or email sjt@gosschalks.co.uk

You can find out more about how we can help you here.

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