“WOT A HOLE – AINT GOING BACK THERE” – What to do with a damaging review

Mr Justice Warby recently held in Mballe Sube v News Group Newspapers and Express Newspapers that articles under headlines such as “Shameless French family-of-10 demand MANSION” did not pass the threshold for serious harm under the Defamation Act 2013. This decision has left us wondering whether, in this social media age, malicious falsehood is the new defamation?

The differences

When someone makes a false statement about another person or company, the injured party can make a claim for damages and/or an injunction against them making defamatory statements or statements which constitute malicious falsehood (or indeed both).

So what you may say? Well, defamation requires proof of damage to reputation whereas malicious falsehood does not. Malicious falsehood does, however, require the Claimant to show financial loss flowing from it.

In a claim for defamation it is necessary to show that the words complained of are defamatory. A statement will not be defamatory unless it has caused or will cause serious harm to the injured party which is a notoriously high threshold. In addition, it is a defence for the publisher (i.e. the person posting the comment) to have held an honest belief in its content.

The bar for malicious falsehood is lower, as it is only necessary to prove that the statement was false. For instance this may apply where someone publishes a statement indicating that an infamous dairy farmer no longer sells cheese, when in fact they do, causing them to sell less cheese as a result. It is a defence if the publisher of the statement published the words in good faith but if they believed the words to be true and they turned out to be false, this will not be a defence if the intention was to cause harm.

The limitation period for both causes of action is one year; however the single publication rule (preventing each fresh publication of defamatory material giving rise to a separate cause of action) only applies to defamation. Malicious falsehood will therefore potentially provide a slightly longer period in which to issue a claim in some cases.

How does this affect you?

Both causes of action will apply to classic forms of publications such as newspaper articles, radio broadcasts and so on but in today’s digital world, malicious falsehood or defamation may be affecting you more than you think. Even Tweets have now been ruled as defamatory by the Courts (unsurprisingly Katie Hopkins has fallen foul of this).

Is your business or product reviewed on any review sites like TripAdvisor or Trustpilot? Maybe you have just converted your farm buildings into holiday lets and are using Airbnb to advertise your property. Perhaps it is mentioned on a local community group page on social media? If so, you may benefit from great, honest reviews but may also be the recipient of false, negative comments published on an online forum.

You can, of course, contact the website or make a comment in response but should be careful not to retaliate on a public forum as this could, ultimately, be more damaging. For instance one hotel manager felt it appropriate to respond to a bad review on TripAdvisor by saying “With only one person to look after the place what do you expect? Think about what you paid” You may therefore feel it is better to seek professional advice before taking any action.

What next?

If your concerns relate to a statement made on a review site or public forum it is likely your claim will fall under malicious falsehood, suggesting we may see a rise in these claims over defamation in the next few years.

If you are concerned about any publication relating to you, your land or your business, please get in touch. We can advise you whether or not you have a claim against the publisher for malicious falsehood or defamation.

It may be that you have a claim and can seek damages and/or an injunction. Alternatively you may not want to incur the costs of formal action but would like the statement removed or an apology. If this is the case it may be possible to achieve this through correspondence. Given the short limitation period, if you suspect you may have a claim it is important to act quickly, even if you do not want to take formal action.

If you would like to discuss any of the above in further detail, or provide your comments in this regard, please do not hesitate to contact Laura Mackain-Bremner.