Reviewing the situation: online reviews and the law
4 April 2021
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 people’s fingertips. Nowadays, everyone is a publisher.
Inevitably, this can end badly for all parties concerned. In September 2020, an American guest at a hotel in a Thai resort got in a dispute with a waiter about the $15 corkage fee he was being charged for a bottle of gin. Matters escalated from there and, after the tourist posted a negative review of the hotel on TripAdvisor which accused the hotel’s management, inter alia, of treating its staff like “slaves”, he was arrested under Thailand’s criminal defamation laws. Having spent two nights in jail, he was released on bail, and only after he apologised to the hotel did he escape prosecution. The hotel itself, however, did not escape unscathed, as Tripadvisor subsequently advised its users of the hotel’s action against the reviewer, a move which clearly reflects adversely on the hotel.1
Online reviews are primarily hosted on four distinct fora:
a) On the user’s own platform, usually a social media account such as Facebook or Instagram;
b) On a company’s own website or Google listing;
c) On third party websites which market the goods or services, such as amazon.com;
d) On third-party websites which specialize in providing reviews of goods and services, such as trustpilot.com or tripdvisor.com.
Such commentary is unfiltered, 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 the victims of critical reviews having difficulty controlling the damage caused due to the fact that they are often posted anonymously.
Anonymous reviews
Many reviews are posted by genuine customers, using their own names, particularly when their review is a positive one. Even when posting negative reviews, many users are content to identify themselves, satisfied that their opinion is bona fide, and unafraid for the business in question to know of their unhappiness at the service they received.
Most social media platforms and online intermediaries however, allow for users to operate anonymously on their sites, and often don’t even require a user to provide verifiable identification when registering with them. It should be noted, of course, that the use of anonymity, of itself, does not necessarily mean that the review is not bona fide.The availability of anonymity has, however, created a proliferation of reviews which are unfair, inaccurate or simply fraudulent. This is on account of the reviewer believing that the ability to disguise their identity means that they will not be held accountable for their comments.
Anonymity can also encourage disgruntled customers, whose previous defamatory comments have been taken down, to repost their review under different names. This give the impression that several people share the same negative review of the business in question, when it may all in reality be coming from one person. In 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 re-posted the review under different names. The court awarded the plaintiff Aus$750,000 (approx. €475,000), primarily to reflect the loss of business which Mr. Cheng claimed had been caused by the negative review.
Even if it is just a single review by a genuine customer, the use of anonymity means that a victim who may wish to pursue the reviewer for defamation will be faced with a difficulty in identifying them. Internet intermediaries are usually reluctant to disclose the identity of their users, so it will be necessary for the claimant to institute separate Norwich Pharmacal proceedings in order to compel an intermediary to reveal any information they have as to the true identity of the user. For a discussion on this type of application, see the separate article here.
Fake reviews
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. Fraud may well be engaged when the review is made by a person who never availed of the goods or services they are purporting to review, or where a bona fide reviewer adopts extra, fictional names to create additional reviews so as to fraudulently amplify their own opinion.
An increasing issue is that of ‘fake’ reviews, which are posted by authors who claim to have purchased goods or experienced services which they have not. These can take the form of either positive reviews to fraudulently benefit a particular party, or negative ones to damage it. One of the first cases of online defamation in this jurisdiction, Maguire v Gill (Unreported, High Court, 12 September 2006), concerned postings made to an early incarnation of customer reviews. Rateyoursolicitor.com was a website which 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 against solicitors. 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 [2012] 1 IR 380, Peart J pointedly remarking about the damage that could be inflicted by anonymous, unverified comments on the internet.
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,2 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.
In a recent Australian case, Smith v Jones,3 the defendant was a building inspector who was being sued by previous clients, with the plaintiff being the solicitor who was representing them. The defendant posted reviews of the plaintiff’s legal practice on Google and Yelp!, describing his “money-hungry unethical approach” and that “This man will take your money and still leave you in debt.”The Court awarded damages in the sum of Aus$80,000 to the plaintiff (c. €52,000), and an injunction prohibiting the defendant from repeating the allegations.
Sometimes, however, the motive can be financial gain in return for a positive review. In the English case The Bussey Law Firm PC & Anor v Page,4 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.
Another example of false positive reviews is in evidence in the growing phenomenon of ‘Influencer’ promotions, whereby social media users with large online followings are paid by brand to promote their goods or services. In some cases, the influencer in question may not make it clear that their post is an advertisement, and will instead purport to be giving an unbiased review of something which they have in reality been paid to promote. The issue of social media influencers and the law will be dealt with in greater detail in a subsequent article.
Defamation and online reviews
While the use of fake reviews is increasingly commonplace, the legal issue engaged by an online review is often that a reviewer believes themselves to have a legitimate grievance, but goes too far in their condemnation of the business, and their review becomes defamatory. 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. When a basis in truth gives way to untrue allegations, however, such a defence will be lost.
In the Australian case of Tavakoli v Imisides.5, the defendant was unhappy with cosmetic surgery treatments which she had received from the plaintiff surgeon. In a series of Google reviews of the plaintiff’s practice, the defendant not only claimed that the surgeon was incompetent, but falsely claimed that he had charged for procedures which he had failed to perform, and falsely claimed 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 Supreme Court of New South Wales awarded the plaintiff Aus$530,000 (c. €330,000).
A discreet issue in respect of online reviews is the posting of star ratings, unaccompanied by any text commentary. While giving a business a zero or one-star rating can clearly be potentially damaging to that business, it is unclear as to whether this would fall foul of defamation law, even if the reviewer did not have an experience that would justify such a rating, and could therefore not avail of the defence of truth or honest opinion. In the very recent US decision in Gursten v Doe,6 the Michigan Court of Appeals held that such a rating for a law firm, without any accompanying text, could only be considered to be an expression of opinion, and was therefore protected speech under the First Amendment. The plaintiff firm of attorneys suspected that the review had been placed anonymously, and maliciously, by a rival attorney, but the Court was unwilling to allow discovery of the reviewer’s identity on the basis that it might “discourage others from exercising their rights to free speech.”
This decision is obviously not of directly applicability in this jurisdiction. Firstly, a defence of honest opinion would require to be based on allegations of fact, whereas in the US there is no such requirement. Secondly, the identity of an anonymous reviewer may be obtainable in this jurisdiction via a Norwich Pharmacal application, subject to the victim establishing a prima facie case of wrongdoing on behalf of the reviewer. Nonetheless, the issue of whether a low-star review of itself could, without any experiential facts to back it up, be considered defamatory is an interesting one, which does not appear to have been considered either in Ireland, the UK or by the CJEU.
Should online reviews be taken literally?
An additional issue to be considered in respect of online reviews is that courts, in dealing with proceedings involving 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. The UK Supreme Court held in Stocker v Stocker7 that internet users who read material online may approach it differently to content which they read in more traditional media.
In the Canadian case of Acumen Law Corporation v Nguyen8 the defendant expressed his dissatisfaction with legal representation he had received, via comments on the plaintiff’s Google Plus profile page: “I spent nearly $2000 for [lawyer] to lose a case for me … Anywhere else would be moore helpful. worstest lawyer [sic].” The court held, however, that a reasonable reader would understand that not all reviews are 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. 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.
Indeed, in the recent US case of Gursten v Doe discussed above, the Court was of the view that the very fact that many online reviews are posted anonymously means that readers are less likely to take them literally, suggesting that “the very fact that most of the posters [on Internet message boards] remain anonymous, or pseudonymous, is a cue to discount their statements accordingly.” It should be stressed, of course, that this specific issue has not yet received judicial consideration in this jurisdiction, and the decisions therefore are merely of persuasive authority.
A different decision was recently arrived at in the case of Summerfield Browne v Waymouth,9 in which the English High Court held that the plaintiff firm of solicitors had been defamed by a negative review posted by the defendant on the trustpilot.com review website. The Court placed particular emphasis on the fact that the review in question had referred, in its title, to the firm as “scam solicitors”. It rejected the defence of honest opinion on the basis that it was clearly an assertion that, as a matter of fact, the firm were dishonest and fraudulent. Following the posting of the review, evidence was adduced that enquiries to the firm of solicitors fell by approximately 50% for a period of 5 weeks and the Court was satisfied to infer that “a substantial number of potential clients were put off and that there has therefore been a financially damaging impact for a period of at least three to four months.” As the plaintiff had limited their claim in damages to €25,000, the Court did not feel it necessary to make any substantial enquiry into the exact damage caused, and was satisfied to award that sum in general damages.
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 which they are hosting. A recent example of this can be seen in the case of an Australian accountant who has brought proceedings against Google to obtain the identity of the person(s) behind a series of negative reviews, posted under the names of people who were not clients of the firm.10
This is but one example of an ever-increasing number of Norwich Pharmacal-type applications which are necessitated by the fact that platforms such as Google allow users to publish reviews without revealing their identity. While companies which publish reviews of their goods and services on their own websites are now obliged under EU legislation11to satisfy themselves as to the authenticity of these reviews, there is no such regulation of Google Reviews, or websites such as Trustpilot or TripAdvisor, meaning they will be generally not be held liable for any fake or inaccurate reviews which they host.
The liability of such intermediaries for user-generated content which they host has been the subject of increasing consideration. In broad terms, Article 14 of the E-Commerce 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. Even after they have been notified of the material, however, users often find that the platforms are reluctant to take the material down, claiming that they are not in a position to adjudicate as to whether it is “unlawful.”
The potential liability of the operator for reviews posted on its website has also been considered. In Zoutman, discussed above, the plaintiff also brought proceedings against the websites which hosted the comments, but these were settled before trial. In McGrath v Dawkins12 the English High Court considered a claim for defamation relating to comments made in the review section for a book which 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 websites 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 which ‘slips through the net’. This case does, however, pre-date guidelines published by the EU in 2017,13 which suggests that intermediaries which monitor such content will not necessarily lose the protection of the E-Commerce Directive.
The UK Defamation Act 2013 now provides a mechanism by which the operator of a website may be held responsible for anonymous reviews which it hosts if, upon receiving a notice of complaint from the victim, the operator fails to follow set procedures such as contacting the author of the review, and removing the review if the author refuses to engage with them. There is, unfortunately, no equivalent provision in this jurisdiction in the Defamation Act 2009, and intermediaries traditionally utilise the hosting defence offered by section 14 of the E-Commerce Directive. They are usually unwilling to accept a victim’s assertion that the material is “unlawful”, nor are they usually willing to divulge the identity of an anonymous reviewer without a Court order compelling them to do so. This means that victims of defamatory or fake reviews are often compelled to institute proceedings to have the reviews taken down.
Furthermore, there is nothing to stop the offender, even after the offending review has been removed, from re-posting it under a different, assumed name. The CJEU’s decision in Eva Glawischnig-Piesczek v Facebook Ireland,14however, held that a host of defamatory material may be under a legal duty not just to block the further publication of the material, but also to block “equivalent” material from re-appearing. The decision is untested in this jurisdiction, and does not appear to have been used in respect of online reviews, but there appears to be no reason why it could not be applied to such a situation.
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 utilises positive reviews to promote its business, it should be considered to be a form of advertising, and therefore subject to the relevant consumer laws. There is no specific legislation governing the use of online reviews in this jurisdiction. It is unclear whether reviews which 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 Directive 2019/2161 Modernising Consumer Law 2019 is significant, as it recognises the increasing importance that consumers place on reviews when they make purchasing decisions. 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.
Conclusion
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 author of the reviews, the intermediaries which host the comments are likely to come under increased scrutiny.
Ends.
1 https://www.nytimes.com/2020/11/11/world/asia/thailand-hotel-tripadvisor-jail.html
2 Zoutman v Graham [2019] ONSC 2834
3 Smith v Jones [2020] NSWDC 262
4 The Bussey Law Firm PC & Anor v Page [2015] EWHC 563 (QB)
5 Tavakoli v Imisides [2019] NSWSC 717
6 Gursten v Doe, (Michigan Court of Appeals, LC No. 2019-171503-NO)
7 Stocker v Stocker [2019] UKSC 17
8 Acumen Law Corporation v Nguyen[2018] BCSC 961
9 Summerfield Browne v Waymouth [2021] EWHC 85 (QB)
10 https://www.abc.net.au/news/2020-07-14/accountant-suing-google-over-anonymous-bad-review/12450410
11 Directive (EU) 2019/2161 of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules.
12 McGrath v Dawkins [2012] EWHC B3 (QB)
13 EU Guidelines, “Tackling Illegal Content Online Towards an enhanced responsibility of online platforms”, 28 September 2017
14 Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Limited