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Online reviews

08 May 2020 / Defamation Print

Reviewing the situation

Online customer reviews can make or break a business and, when contentious, can break the laws of fraud, defamation and intentional infliction of emotional suffering. But they are also a pivotal means by which businesses attract custom.

There was a time when reviews – of a movie, restaurant or hotel – were confined to the pages of a newspaper and penned by a journalist whose opinion was viewed as both informed and impartial. The advent of the internet age, however, has placed the required tools for a review – an engagement, an opinion and a keyboard – at everyone’s fingertips.

Online reviews are primarily hosted on three distinct fora. They can be posted on a company’s own website or Google listing. They can be posted on third-party websites that market the goods or services, such as amazon.co.uk.

Alternatively, they can appear on third-party websites that specialise in providing reviews of goods and services, such as tripdvisor.com. Such commentary is unfiltered, often anonymous and, because it can be viewed by all internet users, its impact is far-reaching.

This has resulted in online reviews provoking a growing volume of litigation, with an increasing issue being that of ‘fake’ reviews – that is, reviews that are posted by authors who claim to have purchased goods or experienced services that they have not. These can take the form of either positive reviews to fraudulently benefit a particular party, or negative ones so as to damage it.

The nature of proceedings

Various proceedings involving the posting of customer reviews on the internet have engaged with the laws of fraud, defamation, and intentional infliction of emotional suffering, with proceedings often involving all three.

One of the first cases of online defamation in this jurisdiction, Maguire v Gill, concerned postings made to an early incarnation of customer review sites. Rateyoursolicitor.com was a website that purported to allow users to rate legal professionals, but was little more than a vehicle for a small number of people to air their personal grievances.

In 2006, the High Court granted an injunction to the plaintiff barrister to prevent the further publication of highly defamatory remarks.

Six years later, the issue was again considered by the High Court against the same defendant in Tansey v Gill, with Peart J pointedly remarking about the damage that could be inflicted by anonymous, unverified comments on the internet.

Fake reviews

Why do people post fake reviews? In many cases, the intention is to damage the particular person or business, perhaps out of spite, through the posting of a negative review. In a recent Canadian case, Zoutman v Graham, the plaintiff doctor had testified as an expert witness in support of a physician, the latter having attended to a patient who subsequently died.

The defendant was the brother of the deceased, who posted an extremely critical review of the plaintiff on a medical-rating website, warning potential customers against using his services. Crucially, the reviewer falsely purported himself to have been a patient of the plaintiff.

The court rejected the defence of fair comment, noting that the defendant was motivated by malice, and awarded the plaintiff $50,000 in damages.

Sometimes, however, the motive is financial gain in return for a positive review. An analysis of ‘fake-review factories’ – where contractors are paid to post fake reviews, often on an industrial scale, in return for free goods or payment – is beyond the scope of this article.

By way of example, however, in September 2018, Lecce Regional Court in Southern Italy sentenced the owner of a review company, Promo Salento, to nine months in prison for writing fake TripAdvisor reviews of hotels and restaurants in return for a fee.

In the English case The Bussey Law Firm PC & Anor v Page, the defendant was accused of defaming the plaintiff law firm and its principal with a review on the firm’s Google Maps profile, which claimed that it “pays for false reviews, loses 80% of his cases”. Noting that the defendant had advertised on his Twitter account that he was willing to post reviews in return for payment, the court found for the plaintiff.

Defamation and online reviews

For critical but bona fide reviews, the traditional defences of truth and honest opinion will offer a degree of protection against any claim for defamation, so long as the reviewer does not make factually untrue statements.

Furthermore, courts that have considered proceedings with an online element have held that the nature of the medium should be factored into any assessment of whether a statement can be considered defamatory.

Britain’s Supreme Court recently stated in Stocker v Stocker that internet users who read material online may approach it differently to content that they read in more traditional media. It should be stressed that this specific issue has not yet received juridical consideration in this jurisdiction, and such decisions therefore are merely of persuasive authority.

In the Canadian case of Acumen Law Corporation v Nguyen, the defendant expressed his dissatisfaction with legal representation he had received, via comments on the plaintiff’s Google Plus profile page: “I spent nearly $2,000 for [lawyer] to lose a case for me … Anywhere else would be moore [sic] helpful. worstest [sic] lawyer.”

The court held that a reasonable reader would understand that not all reviews were going to be positive, and their opinion of the plaintiff would not be damaged by the comments, awarding the lawyer a token $1 in damages.

A novel concept

The court placed emphasis on the fact that the author was a disgruntled client, had posted the review in the heat of the moment and, interestingly, that the poor grammar of the post was a sign that its defamatory potential would be reduced – a novel concept that has not received any consideration in this jurisdiction.

A different decision was recently arrived at, however, by the Supreme Court of New South Wales in Tavakoli v Imisides. A plastic surgeon issued proceedings in respect of a Google review in which the defendant had claimed that the surgeon was incompetent, that he had charged for procedures he had not performed, and that he had threatened the defendant with litigation should she complain about him.

Evidence was adduced of a near 25% fall in the number of enquiries to the plaintiff’s practice post-publication, and the court awarded the plaintiff Aus$530,000 (€330,000 approximately).

On February 2020, an Australian lawyer brought proceedings for a scathing review of his firm, which was posted by a Ms Isobel Lok in October 2018. The lawyer claimed that Ms Lok had never been a client of his and, when requested to take it down, Ms Lok simply reposted the review under different names. The request for removal was also made to Google, but it took the platform over a month to delete it.

The court awarded the plaintiff Aus$750,000, primarily to reflect the loss of business that Mr Cheng claimed had been caused by the negative review.

Liability of intermediaries

When an application is made against an internet intermediary, such as Google, Twitter or Facebook, it often takes the form of a request for them to reveal the identity of an anonymous online review that they are hosting. The liability of such intermediaries for user-generated content that they host has, however, been the subject of increasing consideration.

In broad terms, article 14 of the eCommerce Directive provides that such organisations will not be held responsible for any unlawful material they host unless they have been notified of its existence, and then fail to act “expeditiously” to remove it.

Liability of the website operator

The potential liability of the website operator for reviews posted on its website has also been considered. In Zoutman, the plaintiff also brought proceedings against the websites that hosted the comments, but these were settled before trial.

In McGrath v Dawkins, the English High Court considered a claim for defamation relating to comments made in the review section for a book that was on sale on amazon.co.uk.

In considering an application to have proceedings struck out against Amazon as a co-defendant, the court noted the ‘catch-22’ situation that website hosts often find themselves in when it comes to comments or reviews posted by users, namely that by engaging in any form of monitoring of such content, it may leave itself open to liability for any unlawful material that ‘slips through the net’.

However, this case pre-dates guidelines published by the EU in 2017, which suggest that intermediaries that monitor such content will not necessarily lose the protection of the eCommerce Directive.

Use of reviews as advertising

Online reviews are more than simply a platform for customers to air their opinions. They are also a pivotal means by which businesses attract custom. It is arguable, therefore, that when a company uses positive reviews to promote its business, it should be considered to be a form of advertising, and therefore subject to the relevant consumer laws.

In a case currently being litigated in Australia, a doctor is seeking to make Google liable for negative reviews that were posted on his Google Business online listing. The doctor claims that he was defamed by Google, which had refused to take down reviews that claimed he had “butchered” patients, was “a fraud” and “an illicit drug user”.

“Puffery and hyperbole”

According to documents filed by Google, one aspect of their defence is that the doctor had used his Google Business platform to attract business, often using “puffery and hyperbole” to describe his practice. He had consequently invited robust public criticism, including reviews of his work, and it is reasonable he should be the subject of such criticism.

There is no specific legislation governing the use of online reviews in this jurisdiction. It is unclear whether reviews that traders publish on their websites would be considered to be ‘representation by the trader’ for the purposes of bringing it under sections 42-46 of the Consumer Protection Act 2007, which cover the use of misleading commercial practices.

The recently-adopted EU Enforcement and Modernisation Directive 2019 is significant, as it recognises the increasing importance that consumers place on reviews when they make purchasing decisions.

Increased transparency

The directive provides for increased transparency when traders utilise consumer reviews to promote their goods or services, with article 3(4) including the requirement to publish details as to how the trader ensures that such reviews are authenticated, that they come from users who have genuinely availed of their services, and to reveal whether there was any commercial relationship with the person(s) providing the review.

It will be interesting to observe the degree to which forthcoming domestic legislation, in the form of the proposed new Consumer Rights Act, attempts to tackle the increasingly contentious issue of online reviews, and particularly the potential liability of the platform hosting the review.

As the use of such reviews increases, so their importance grows – whether as a means to promote a business through positive reviews, or as a means to damage them through negative ones. And, given the widespread use of anonymity and the resultant difficulty in identifying the authors, the intermediaries that host the comments are likely to come under increased focus.

Michael O’Doherty
Michael O’Doherty is a practising barrister and the author of Internet Law (Bloomsbury Professional)