Looking ahead to the next decade, it seems that the digital world will continue to play a significant role for businesses and consumers alike – for better or worse.
Comparison websites, online reviews and comments all play an increasingly important part in any company or individual’s business. TripAdvisor, Checkatrade, TrustPilot, Facebook reviews and Google reviews are widely used and available for customers to access within seconds. A negative review can make the difference between gaining or losing potential customers.
The issue is that many bad reviews are not a true reflection of the service actually provided – customers can become disgruntled for various reasons, for example buyer’s remorse or because they have not properly understood the contract terms. In other cases reviews are completely artificial and submitted by parties who have not even engaged the business. Nonetheless, these reviews remain publicised and may damage the business’ reputation in the eyes of a third party.
There are options for limiting reputation damage. A formal pre-action letter before claim can be sent to the writer if their identity is known, setting out the potential action for defamation and requiring them to immediately remove the comments and issue an apology (sometimes referred to as a “cease and desist” letter). This is a robust approach which often is enough for the commenter to reconsider their choice of words and to remove the offending post. If identifiable financial harm has already been caused, a business can consider pursuing a claim against the individual to recover its losses.
However, defamation is not always easy to identify in the context of online comment. Critical language will be interpreted less seriously and given less weight than if it appeared in another context, as confirmed by the recent Supreme Court case of Stocker v Stocker [2019] UKSC 17 in which a judge considered the word “strangle” would be read by third parties in the colloquial sense rather than dictionary definition. This decision may impact the court’s interpretation of words used in bad online reviews. For example, whilst fraud is a criminal offence and a serious allegation, a sympathetic judge may rule that third parties would interpret reference to “fraud” in a review as only meaning the reviewer felt they were treated dishonestly or unfairly. Businesses will need to carefully consider the colloquial context of words used in reviews beyond their dictionary definitions before considering taking action.
There are also practical solutions which may help de-escalate the situation. Often a professional and comprehensive reply to the comment can be enough to re-assure third parties that it has little credibility. Alternatively, most websites offer a reporting system whereby you can flag disingenuous or potentially defamatory reviews.
With either option, prompt action is necessary to avoid reputation damage and consequential losses.