In Europe, the US and Canada over 87% of buyers check out online reviews before making a significant purchase. The big question here is what happens if you have left a negative review of a business and the business-owner believes it to be false, defamatory, malicious or just decides to strike out with a summons? This is an area where we a regularly asked to assist regarding defamatory reviews or forum postings.
At the route of the problem is that a lot of people try to hide behind perceived “anonymity” see https://toronto.ctvnews.ca/anonymous-internet-posters-sued-for-defamatory-comments-in-online-chat-forum-1.4768851 in several previous cases we have successfully determined who was behind the postings. This is achieved by applying pressure against the forum to disclose or making an approach to the posters under pretext to gain their trust and determine who they are. There are a variety of tactics we employ depending on the country involved, the platform e.g a forum, Trustpilot, Yelp, Google or Trip Advisor and the specific circumstances. Regardless there is almost always a route to get the offending party into court or seek recompense by other means.
As an example of how things could be approached, let's take the UK as an example. In the UK regulations under section 5 of the Defamation Act 2013, define the potential defences for a forum or website owner who has been informed that something on their website is defamatory. The most common defence is for the website or forum owner to say they had no knowledge of the posting. It is at this point that things can become very uncomfortable for the site or forum owner, this is because if the defamed party can show that they cannot identify the person or persons who posted the content the defamed party can request that the website or forum owner take one of two paths to help mitigate the damage. Generally in this situation either ourselves or the lawyers we partner with would ask the owners of the site or forum to either identify the poster or alternatively delete the post. If the website or forum owner fails to respond positively to at least one of these options they would likely lose their defence of not being aware of the situation, this means, the website or forum owner themselves could be deemed responsible for defamation on the basis they have failed to act in order to prevent damage to the defamed party. In the UK once the website or forum owner receives formal notice of the defamation then within 48 hours they must send a copy of the notice to the poster asking them for permission to either delete their post or provide their contact details to the defamed victim. In many cases forums will remove the poster from the forum in case there are further historic postings which are at that stage unidentified. The key here for the forum or site owner is to be seen to have done everything reasonable to mitigate damage to the defamed party's reputation.
Once the notice has been served the forum or website owner must then wait for 5 further days for a reply from the poster, this is following the 48 hours during which as outlined above they must they must send a copy of the notice to the poster requesting either permission to delete their post or alternatively provide their contact details. In the event the forum or website owner is unable to contact the poster, or if the poster ignores their notification, the forum or website owner must delete the offending post, if the poster(s) gets in touch and insist the statement or posting should remain, the forum or website owner could leave the defamatory statement on their forum or site but this could potentially drag them into a protracted legal dispute and in addition if they remove the posting they must endeavour to ensure it is not posted again. We frequently find that forum owners say “they are not active and we received no reply” in most cases we monitor activity only to find there are ongoing postings from the defamer which does very little to help the forum operator and can potentially be construed as potential collusion which we will look at in more detail below.
Where things can get very unpleasant in most jurisdictions is if it can be shown that the forum operator has conspired with the poster(s), this arose in a case where we were instructed to act for a company manufacturing special optical equipment In such cases, the forum or site operator could well be held liable to comments by other users of the discussion forum if it can be shown that they had encouraged or deliberately prompted the posting of defamatory statements against the victim. In the case of the optical company it was confirmed that the forum operator was in regular touch with our clients competitor and had personally posted negative content on other forums, in addition he had provoked forum members on his own forum into posting damaging content, making matters worse for the forum operator there were also two serious allegations on the forum which could be proven to be untrue. When the whole matter ended up in court the forum operator was asked who gave him the information regarding the two allegations and how he could justify the accusations when the defamed party had indisputable evidence that the accusations were false beyond doubt. The result of this was that not only did the court find against the member who left defamatory content but also against the forum operator, both were ordered to pay substantial damages and post a correction on the forum.
Even when people post on Review sites such as Trustpilot things can take a very unpleasant turn see https://www.bbc.com/news/technology-55981600 the current position is that Trustpilot are refusing new postings for the Law Firm see https://uk.trustpilot.com/review/www.summerfieldbrowne.com this is just one example there are many more.
The above is a case in the UK but the US and Canada are very similar see https://www.cnbc.com/2019/10/10/can-you-get-sued-over-a-negative-yelp-review.html
There are a few references at the link above but one which illustrates how things can get totally out of control involves a Colorado couple who apparently ran up costs of $65,000 in legal fees fighting a defamation case filed against them by a flooring company which the couple negatively reviewed on Yelp.
In the US the problem often arises because people assume they can post whatever they like based on their first amendment rights, if only it were that simple! Unfortunately, it’s become a major issue over the last few years to the extent that in the US that Congress passed a law in 2016, called the Consumer Review Fairness Act (CRFA), to protect consumers’ ability to leave an honest online review of a business without being punished. Of course this is all very well but it offers no protection in the event of malicious or defamatory reviews left without justification. This is because the CRFA still leaves room for business-owners to sue for defamation in cases where a customer, or even a rival, posts false negative reviews online.
There are a lot of paths to deal with defamatory postings besides pursuing the defamer in the courts there are many other potential remedies such as holding websites, forums, hosting companies and ISPs liable, in addition to these routes individuals and businesses who are victims of internet defamation have at least 7 other options to remove defamatory online content and depending on location we know exactly which routes will likely lead results quickly. The object in most cases is to avoid court proceedings because the costs are prone to rapidly escalate. We therefore seek to work with the various parties to remove the offending material and prevent escalation. We usually find that when a client asks us to instruct our legal associates or to issue a claim for defamation in the County Court the whole issue rapidly escalates out of control, the costs are such that from the outset the claimant has no alternative but to pursue the matter to recover their losses. Matters are further complicated by the fact that the longer the defamation continues to be visible the greater the damages that would be likely to be awarded in the courts. Having extensive experience of dealing with large numbers of cases in the past there is the additional factor that an individual or company might refuse to complete a purchase citing the online comments as a primary factor and confirming it in an email or worse still as grounds for cancellation of an order, it goes without saying that this is something which could well have a significant bearing on any damages claim pursued through the courts.
Regardless of whether you have an issue in Europe, the US or elsewhere contact us for advice because if the material is provably false and/or defamatory we will have a potential solution.