When the UK Defamation Act 2013 came into force in January 2014, Shailesh Vara, the justice minister, publicly expressed the hope that the revised laws would discourage claimants from filing “trivial” claims that waste courts’ time and harm freedom of speech.
“The introduction of these measures will make it harder for wealthy people or companies to bully or silence those who may have fairly criticised them or their products,” said Mr Vara.
“As a result of these new laws, anyone expressing views and engaging in public debate can do so in the knowledge that the law offers them stronger protection against unjust and unfair threats of legal action.”
The act also tightens the test for claims with little connection to England and Wales being brought before courts there, in an attempt to end the trend of so-called “libel tourism” that has made London the world’s capital for such cases.
But, despite lawmakers’ good intentions, cases of libel or slander seem to be on the increase. Research published by Thomson Reuters in October 2014 showed a 23 per cent rise in the number of reported defamation cases in the UK over the past year, up from 70 to 86.
At the heart of this growth, it seems, is a sharp rise in claims brought in response to online postings on social media, review sites and blogs. These more than quadrupled, rising from six to 26, the research says.
“The instant nature of social media is certainly changing the face of defamation law,” says Ian Birdsey, a senior associate at Pinsent Masons, the law firm. “More and more people use social media to communicate, and often with people beyond their immediate social sphere. Sometimes, they do that without really thinking through the possible consequences of their words.
“All this brings with it a number of challenges — and one of those would appear to be a rise in the number of defamation claims relating to derogatory online posts.”
A number of recent cases bear this out. Jason Page of Telford in the UK, for example, faces a legal bill of £100,000 after he groundlessly called US-based lawyer Timothy Bussey a “scumbag” who “loses 80 per cent of his cases” on Google Maps. The anonymous review was defamatory of Mr Bussey and his firm, ruled High Court judge Mr Justice Eady.
Several fans of Blackpool Football Club, meanwhile, face libel actions after criticising the club’s owners, Karl and Owen Oyston, on Facebook and on an internet forum, backhenrystreet.co.uk. Other Blackpool fans have rallied round to help one defendant, pensioner Frank Knight, to meet the £20,000 in damages he had already agreed to pay the club.
And US-based stock shortseller Gotham City Research was sued for libel last year by Quindell, the Aim-quoted insurance claims processor, after tweeting a link to a highly critical report it produced about the company, claiming its stock was “uninvestable”. Quindell obtained a default judgment after Gotham did not defend the claim in London.
So what do these cases mean for other individuals who use the internet to express opinions about a company or its services, particularly if the target of their criticism might find those views unpalatable?
Harry Kinmonth, a solicitor at RPC, a media law firm, insists that customers still have the right to air their views, but they have to adopt a reasoned approach. “In defamation law, honest opinion is a defence to any claim. So, you are able to express any opinions you want, as long as they are honestly held and based on some sort of fact or experience,” he says.
“People shouldn’t be too worried, on that basis, about reviewing a restaurant for example, unless that review contains, for reasons of malicious intent, opinions that are exaggerated or that cannot be justified.”
Companies that publish customer reviews, meanwhile, are careful to guide their contributors in the right direction and often moderate reviews carefully before publishing them.
BazaarVoice, for example, a user-generated content engine that helps companies capture, manage and respond to customer input, collects, moderates and publishes online customer reviews on behalf of retailers and consumer brands, including Halfords, Philips and Estée Lauder.
Dylan Hoeffler, BazaarVoice’s manager of authenticity and fraud, says: “Laws that define ‘defamation’ vary. However, we believe the critical elements are false or misleading statements that are made with the intent to harm reputation.
“In that sense, a review that states: ‘This television didn’t display as good a picture as I would have expected for the price’ may be perceived as negative, but it wouldn’t be considered [libellous],” he says. “Conversely, one that states: ‘This television spontaneously caught fire and burnt my wall” could be [libellous if] that circumstance proves to be demonstrably false.”
Similarly, TripAdvisor, the travel review site, cautions users not only against “profanity, threats, prejudiced comments, hate speech and sexually explicit language”, but also against “second-hand information” and “hearsay”, which it defines as “unverified information, rumours, or quotations from other sources or the reported opinions/experiences of others”.
Mr Birdsey of Pinsent Masons, meanwhile, offers this advice to online commentators: “If you’re going to criticise, be explicitly clear about the core facts and be as balanced as possible. Don’t exaggerate and don’t speculate beyond the immediate details of your experience. And don’t be deliberately provocative in order to elicit a response.”
He adds: “Most companies today are actively monitoring their online reputation and, while many welcome honest customer feedback, they will also take steps to protect and defend that reputation if they feel it’s been unfairly maligned.”
Get alerts on Ecommerce when a new story is published