FSB continues to campaign and engage policymakers on the issue of malicious reviews, and recently published a report on Online Platforms which included evidence and recommendations in this area.
Defamation is the legal term that is used when a statement is published or communicated to a third party and the content of that statement seriously damages, or is likely to seriously damage, the good reputation of another identifiable person or business.
To qualify as defamation, the statement must identify or refer to the individual or entity in a way that identifies that individual or entity. For example “all lawyers are frauds” is not likely to be defamatory but it may be defamatory to say all lawyers of a specific firm are frauds.
In a business context this means harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the entity serious financial loss.
There are two types of defamation:
Libel – is typically a statement that seriously harms the reputation of an identifiable party and is often communicated to a third party in writing, printed or in some permanent form.
Slander – is typically a statement that seriously harms the reputation of an identifiable party and is communicated to a third party in spoken/verbal/temporary form.
In addition there is the law of malicious falsehood. This is the legal term that applies when a statement is untrue but not necessarily defamatory, where it was published in bad faith/maliciously and it’s caused actual damage or financial loss to the person or business involved.
In a recent case the claimant felt that they had suffered defamation and malicious falsehood. However, as they did not know the identities of the offending parties they applied for what is known as a Norwich Pharmacal order (NPO), which is a court order forcing one party to reveal information about another, as in this case they wished to obtain information from the host website about the identities of anonymous reviewers.
The defendant (D) ran an employment website which allowed people to post anonymously about their current or past employers. This claim related to four reviews, which were critical of the management of the claimant (C). C applied for an NPO because they wanted information from D to enable them to identify the anonymous posters.
The High Court decided that the majority of the claims in defamation and malicious falsehood in relation to the four posts were weak rather than arguable. The judge noted previous case law which indicated that an NPO must only be used to enable someone who can demonstrate that they have been the victim of an arguable wrong to seek legitimate redress, rather than to satisfy an alternative motive, such as revenge.
In this case there was evidence that the cause of any reputational problems was likely to lie elsewhere than in the material published on D's website and C had been aggressive in correspondence in a way that suggested that their aim might be to gain revenge. The judge was concerned that C was conducting the litigation not with a view to seeking redress for genuine interference with their rights but rather with a view to closing down criticism of their business.
Balanced against the rights of the reviewer, the court decided against granting an NPO. While there might be stronger arguments for protecting anonymity in cases involving the expression of deeply held political or religious beliefs, there was public interest generally in those who post anonymous comments having their anonymity respected. The harm to the interest of the author losing anonymity was greater than the harm to C in being prevented from pursuing a claim which, if successful, was likely to be of minimal value and which could only go a small way to vindicating the rights that they considered to have been infringed by people posting on D's platform.
In conclusion it’s important to weigh things up carefully before bringing a claim for defamation, as these can be expensive, complicated, and even be counter-productive. Furthermore, If you do not know the full identity of the perpetrator there may need to be an additional layer to the litigation, namely the need to seek an NPO. As this case demonstrates, obtaining an NPO is far from a formality. You need to balance all of these factors against the reputational and/or financial damage that the offending comments are causing when deciding what is the best way forward.