In the age of internet, all businesses are subject to some form of online review platforms such as Google Review, Facebook Rating, Agoda and Tripadvisor.
Given the impact of these reviews may have on the businesses, business owners have become overzealous in protecting their reputation from bad or negative reviews to the extend of filing defamation suits against the authors of negative reviews.
This article sought to explore the viability of initiating and maintaining a defamation suit against defamatory reviews.
ELEMENTS OF DEFAMATION
In order to prove a claim in defamation, it is also essential that the negative reviews are not only defamatory and that they are published but also that they identify the plaintiff as the person defamed.
In the cases of online reviews, issues of publication and identification of business do not arise as reviews are publication to the world at large per se and more often than not, it will name the business expressly.
A review would be defamatory if its effect is to expose the business, in the eyes of the community, to hatred, ridicule or contempt or to lower him or her in their estimation or to cause him or her to be shunned and avoided by them.
DEFENCE TO DEFAMATION
Once the elements of defamation (i.e. publication, identification and defamatory) have been established, the following inter alia, are common defences that may be raised:
- Justification – the impugned review is true or substantially true.
- Fair Comment – the impugned review is a comment based on proven facts, fair and matter of public interest.
- Absolute Privilege – defamatory statements published in situations including but not limited to judicial proceedings, parliamentary proceedings and police reports
- Qualified Privilege – the author of the impugned review has an interest or a duty to publish the review and the person(s) to whom the impugned review was published had a corresponding interest or duty to receive them.
The defence of qualified privilege and fair comment will fail if it is proven that the impugned reviews were published with malice.
VIABLITY OF INITIATING A SUIT
Whilst business owners have a cause of action against authors of defamatory reviews, business owners often have difficulties identifying the author.
The authors of negative reviews more often than not, are hiding behind a veil of anonymity on the internet. One obstacle to initiating the suit against the author of a negative review is identifying the identify of the author.
Discovery application may be filed in Court against these online platforms to seek disclosure of the author’s information. This would translate in additional cost incurred prior to initiating a suit proper against the author.
As a rule of thumb, always ensure that reviews are accurate, fair and true to negate risk of litigation.
NOTE: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. The information contained herein is for general information purposes only. The writer does not endeavour to keep the information up to date and correct, makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the article or the information, products, services, law, cases or related graphics contained herein for any purpose.
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