No matter what kind of business you run, and no matter how well you run it, there is every chance that you will receive a bad review or negative comment online at some point. Some of these may be on your own social media, where you have a degree more control over what is said, whereas others may be on third party sites, for example, review sites such as Google Review, Trip Advisor, Check-a-Trade etc. There is, unfortunately, an increase in the number of fraudulent and inaccurate reviews, many fabricated by competitors or disgruntled ex-employees.
The Competition and Markets Authority (CMA) has issued a press release that Google has agreed undertakings (legally binding promises) to tackle fake reviews. The CMA has been looking into the issue of fake reviews with big players such as Amazon and Google since 2021.
The undertakings Google has given include:
- Taking rigorous steps to detect and remove fake reviews, so it can quickly identify and investigate businesses and reviewers that make money from fake reviews.
- Deleting reviews from individuals who repeatedly post fake or misleading reviews, and where appropriate banning them. This applies regardless of whether the “fake” review is positive or negative, so could mean that businesses who generate fake positive reviews from friends and family are affected.
- Adding prominent "warning" alerts to businesses' Google profiles where they are found to be using fake reviews, and where appropriate deactivating that business’ review function entirely.
- Creating a robust reporting function enabling the public to quickly and easily report reviews.
The CMA will be able to enforce consumer law both directly or through the courts when the Digital Markets, Competition and Consumers Act (DMCCA) 2024 comes into force, which is currently expected to be in April 2025. FSB has long campaigned for action on fake and malicious reviews which can have a detrimental impact on small businesses, undermining their reputation and ability to attract and retain customers by distorting consumer perceptions. The provisions within the DMCCA and Google’s agreed undertakings are a welcome step in the right direction to help tackle such practices. However, it is worth noting that these really only apply to wholly fake reviews meaning, that some malicious reviews which aim to cause operational instability or distress for the business owner could go potentially under the radar.
The advice line reports that most of the calls which they receive from FSB members do not relate to fake reviews as such, but rather ones which they simply disagree with. All review platforms should and usually do have policies and procedures for reporting fake or misleading reviews. This is necessary because if anything defamatory (see below) is posted, they themselves could be liable as well as or instead of the individual who posted the review. However, clearly no review site or service has any value if it simply removes every bad review at the request of the party criticised, so they will potentially be robust if they feel that the review is genuine, even if it is disputed.
Legal action is always a last resort as it is generally expensive, time-consuming, stressful, and uncertain. It can also up the ante. There is also the risk that it generates more adverse publicity and awareness of the original comment than if you had simply left it and let time pass.
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 or harm, the good reputation of another identifiable person or business. 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.
In England and Wales there are two types of defamation:
- Libel – this is typically a statement that seriously harms the reputation of an identifiable party and is communicated to a third party in writing, printed or in some permanent form, such as the internet.
- Slander – this 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.
The law in Scotland does not make a distinction between libel and slander, with all categories of statement simply considered “defamation”. There are however many potential defences to a claim for defamation. The most common defences to defamation include:
- The content of the statement is substantially the truth. Be aware that if you bring a legal claim the court will have to hear evidence from both parties as to what exactly happened. This can feel like washing your dirty linen in public and there is a risk it will not reflect well on you or your business, regardless of the outcome. It may generate more publicity and awareness of the issue than if you had left things alone.
- The statement is on a matter of public interest. It was made in the reasonable belief that it was in the public interest to publish the statement.
- The statement is an expression of an honest opinion or comment. The basis of the opinion must be indicated, and it must be an opinion that an honest person could hold based on any fact that existed at the time of making the statement. It is important to be aware that virtually all bad reviews are statements of opinion, such as “I didn’t like this restaurant” or “I thought the staff were rude”. As such no matter how strongly you may assert that the particular comments are unfair and untrue, it will be difficult to prove that they are not just someone’s genuine opinion.
In defamation cases the court may award damages, grant an injunction for the losing party to remove the publication or prevent future publication, order the losing party to publish a summary of the judgement, and decide who pays the legal costs (usually the losing party).
It’s very important to note that defamation cases are usually extremely expensive and time consuming and therefore should, ideally be avoided at all costs. The threshold of proving “serious harm to reputation” in the case of an individual or “serious financial loss” in the case of a business, is a tall order. Legal Aid is not available in England and Wales for this type of claim. If you are even considering going to court with a defamation claim you should at least ring the advice line to discuss this before doing so.