March 11, 2015

Landmark win in fake online review defamation case

Every business will be concerned to enhance and preserve its reputation, both online, and offline. To that end, it has become common practice to rely on reviews and references from satisfied customers. But what should a business do if someone posts a fake review, the effect of which is to damage not only its reputation, but its chance of securing future business?

This is just what happened in the recent case of The Bussey Law Firm PC  v Page [2015] EWHC 563 (QB). In that case, the Colorado-based law firm had for some time been maintaining a presence on Google maps that included, among other aspects, a section where satisfied clients had posted positive reviews and endorsements. However, the benefit of those positive reviews was seriously diminished when, in early 2012, a defamatory review was added that not only attacked the integrity, honesty and competence of the firm and its principal but, worse still, brought into question the validity of the other, positive reviews, by suggesting that they were fictitious, invented, and paid for. Not only was this unjustified and unwarranted attack untrue, and clearly defamatory, but the claimants were immediately aware that the review had not been posted by a current or former client, given that they had not acted for any individual with the same name as that of the reviewer. In those circumstances, they were convinced that the review was posted with the sole aim of damaging the firm’s reputation, and reducing its likely business prospects.

Unfortunately, this case is symptomatic of a growing online trend, as a result of the proliferation of social media. As businesses strive to be seen to be engaging through social media with their customer base, they run an increased risk of their brand being associated with content over which they have little or no control. This is undesirable at the best of times, but in this largely unregulated context, there is growing evidence to suggest that some competitors are resorting to paying for reviews, whether to burnish their own reputation, or to disparage their competitors. Just as search engine optimisation can be utilised to enhance online presence, fake online reviews could equally well be used to either raise one’s profile, or damage the effectiveness of a competitors’ online presence.

Whereas most businesses may, from time to time, have a customer who is less than satisfied by their service, and who may leave a negative review, the business can at least address that negative review and try to ameliorate or remedy the reasons for the negativity. However, where a false negative review has been maliciously and deliberately posted, with the aim of damaging the business, it will be virtually impossible for the business to remedy that negativity by, for example, offering to make amends. Attempts to pre-empt such negative reviews through quality of service, or a proper complaints procedure, will also be ineffective. Where a false negative review has been posted, the options available to a business are limited – they can simply try to have the review taken down (often easier said than done), and hope that any damage it causes is limited, or they can try to ignore the review altogether, and trust that the positive reviews will outweigh the negative ones – particularly, if a review seems clearly to be fictitious. However, there is a third option – and one which was taken by the claimants in this case, which is to pursue the individual responsible for posting the defamatory review. This third option had not to date ever been taken to the point of a full trial, reflecting an anxiety on the part of the businesses affected that they would be able to secure a meaningful result against the wrong-doer.

It was only a matter of time, however, before a suitably determined litigant tested the applicability of defamation principles to this type of case, in a full trial. In this case, Mr Bussey and his firm started by undertaking investigations to identify who was ultimately responsible for posting the review. This involved first identifying the owner of the email account from which the defamatory review was posted, and then pursuing the account holder through the courts in both the US, and ultimately in England. The matter ultimately came before the High Court in London, where Sir David Eady (sitting as a High Court Judge) handed down a landmark judgment that the Defendant (the account holder) should pay the Claimants in excess of £100,000 in respect of damages and costs. Indeed, had the claimants not capped the level of damages that they were seeking the Court made it clear that the award would have been much higher.

This decision makes it clear that, should there be an appetite to do so, there is a remedy available to any entity that is on the receiving end of malicious and false negative reviews. Furthermore, the Court has sent a clear message that it will look very dimly indeed on those individuals who post such false reviews whether for fun, or for more mercenary reasons.

Pitmans acted for the claimants throughout this action, including representing them in the High Court at a variety of hearings. Should you wish to discuss any of the issues covered above, please do not hesitate to contact Will Richmond-Coggan or David Williams.

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