How to avoid posting a defamatory online review
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How to write an online review which is not defamatory - what can I say in an online review without risking a claim for defamation?
Under English Law, a defamatory online review might be unlawful if the individual company being defamed suffers reputational and financial harm.
You might be taken to court for an online review with a suggestive defamatory meaning only, even though the actual words that you use are not defamatory. Online reviewers are often unaware that in England, when it comes to defamation, the reviewer could be liable for defamation not just for the words published as part of the online review, but also for any defamatory innuendo. Innuendo is a hint, or a meaning that the reader of the online review might give to the content their read because there is a feeling or a context which invites the defamatory meaning.
It follows that in defamation cases, in England, an online reviewer is unlikely to escape liability just because the express words used were not strictly speaking defamatory. What is important is what readers of the online review understand from reading the review. Internet users’ understanding of a matter often goes beyond the simple words used. Readers of online reviews, in particular have learned to read between the lines. Furthermore, not saying anything defamatory but rather repeating defamatory statements, express or by innuendo from other online reviews, could also land a reviewer in deep trouble. Sometimes, internet users write various online reviews under different pseudonyms and on different review websites, with the intention to create credibility and validation to their own defamatory posts.
In a defamation cases, particularly when the contested matter is a defamatory online review, there could be a major dispute between the reviewer and the person or business being reviewed about whether the online review is in fact defamatory. The court will then take time to consider the actual meaning of the words used, in the context of the entire online review. The question is whose standard, or point of view, do judges need to consider when making a decision about he meaning of the words in defamation cases. Often, the judges would apply a so called reasonable person approach and will put themselves in a position of a person who is not over suspicious but not naive either and who will apply life experience and common sense to reading the online review.
With this type of person in mind, the judge will make a decision as to what meaning to attribute to the words and context of an online review. Matters that might be taken into consideration are, by way of example, an omission of an important fact, such as that the business issued a refund after the reviewer had raised a compliant. Not knowing this important fact might give the online review an entirely different meaning in the eyes of the reasonable reader, which could be defamatory. The subject of the defamatory online review is likely try to exploit ambiguity and omissions in the online review to show that the review is defamatory, in the absence of significant information. If you write an online review, you should therefore try to eliminate ambiguity and convey your meaning in a precise manner. It is often in your interest to include with the online review all important facts, even if they aren’t in your favour.
Truth has always been considered a safe defence in defamation cases. However, when it comes to defamation on online reviews, you would need to consider that half the truth might be worse than a lie and a half. A witness in court has to swear “to tell the truth, the whole truth and nothing but the truth”.
It follows that telling the truth might not be enough. It has to be the whole truth, no omission of important facts, and nothing but the truth, no mixture of truth and fiction. If you are going to tell a painful truth, make sure that you have evidence to support it. Ensure you double check your facts and claims and that you verify their credibility before publishing. With online views it is beset to post from first-hand knowledge and experience. Avoid posting an online review which is a second or a third hand hearsay.
There is a defence to a claim of defamation in England, which is an honest belief. The belief needs to have been genuinely held by the review at the time of publication. Even if the belief turned out to be wrong, the fact that it was genuinely held at the time of posting the online review, would provide the reviewer with a complete defence to a claim of defamation. Some online reviewers sate their opinion as if it was a fact. When writing an online review, you must be clear that you are expressing your own genuine opinion.
If after a while you discover that your belief was misguided, you should take steps to remove the online review or correct it. You can use phrases such as “I think”; “considering the facts, I concluded that”, “I assume” etc. provided you have good grounds for holding those views. In some cases, you will need to be able to explain why you thought of a business or an individual in a particular way or what in the facts prompted you to come to certain conclusions or assumptions about the business you were reviewing.
You are entitled to come to your own conclusions based on your own experience, but it could be difficult for a reviewer to justify concluding that an owner of a business they have just reviewed is a “thief” or that the business is a “scam” without having an actual proof of that. You must always take particular care with allegations of criminality and allegations about what is going on in someone’s mind (for example, that the business owner intended to rip you off).