New UK defamation laws

The proposed changes to UK defamation laws that were included in the Queen’s Speech last week would have a profound effect on online reviews.  The government has made clear its intentions to support free speech, while also enabling claimants to protect their reputation by securing removal of defamatory material without undue delay – and to tackle the problems caused by anonymity.

Reviews sites that publish anonymous comments, will have to act as intermediaries in settling disputes about defamatory content. Upon receiving a complaint, the website owners would be obliged to contact the author and ascertain their identity. If this is not possible, then the site owners must remove the material or face liability themselves.

If contact is made and the review remains in dispute (i.e., an identified author stands by what they have written), then the website will be obliged to pass on the identity of the author to the complainant so that further legal process can take place. As the material would remain published during the dispute, the government have made it clear that the process would need to be rapid and would focus on orders to remove material rather than full libel proceedings. The website will of course then be compelled to remove the content after being served such an order.

So it will become considerably easier and faster for defamation victims to take effective action. They will be able to force the website to either remove the material or pass on the identity of the author. It will also certainly tackle a huge percentage of fake negative reviews. In addition, it will become very clear as to how many dubious or false reviews are on review sites – a factor that could terminally undermine their credibility.

That is obviously good news for those that are being defamed – but it also brings with it a whole host of issues, such as:

What constitutes defamation – and thus enables a person  / business owner to complain under these new rules?

Such complaints should be based on falsehoods and ‘serious harm’. It is likely that most business owners who have suffered an anonymous, negative review that is published on an influential site (i.e., one that appears high in online search results), will claim that comments are both false and doing serious harm – creating financial and emotional duress. The website owners will not be in any sort of position to judge the merits of these factors, so will have to start the mediation process. They are likely to be flooded with complaints and their costs will rise substantially. It is highly probable that they would not be able to sustain viability with this additional responsibility.

For the hospitality industry, which is the sector most featured in terms of online reviews, there will be a strong focus on serious allegations such as food poisoning and bed bugs. These have been used all too often falsely and maliciously in the past and authors are now likely to have to substantiate their claims. That in itself is a good thing, since particularly in the case of food poisoning, rather than dubious or incorrect claims it can lead to proper reporting to the authorities whenever possible so as to protect the public. It will also serve to protect businesses from unfounded claims, some of which are entirely false, and others of which are mistaken presumptions, as the causes of  gastro-intestinal illness are complex and aspects such as the incubation period are often not understood. There are tens of thousands of such reviews that are now likely to be challenged.

All businesses and citizens can be affected by online defamation and the question of defining serious harm will need to take into account the nature of the business in particular – for example, legal and healthcare practitioners being accused of negligence or even as  KwikChex has dealt with recently, a funeral directors being accused of insensitivity and tardiness. Other common allegations such as those around criminality, including the use of words such as ‘scam’, rip-off and ‘con’ or fraud’ will also be high on the list of challenges and the requirement to prove such allegations.

The dangers of harassment of genuine reviewers

Review authors that wish to stand by their comments will have their identities revealed and may then be subjected to a legal process. But more importantly, it will be necessary to ensure that they do not become victims of harassment by complainants who will have their identity and contact information and who could use harrying tactics in an attempt to force the authors to remove fair comments.

Jurisdiction – and new types of ‘libel tourism’

It may be possible for non-UK businesses to still use UK laws to pursue complaints and legal action. This is particularly so where it can be shown that there is a significant number of UK based customers that could be influenced by defamatory material. In the case of many hotels and other leisure / hospitality industry operators, this is likely to be a very significant percentage.

On the flip side, the review publishers may be based overseas and try and argue jurisdiction in attempts not to abide by UK laws. At present, large businesses such as TripAdvisor and Google do acknowledge and abide by British laws, as do those based in EU countries. However, many smaller but nevertheless influential websites based overseas do not acknowledge UK jurisdiction. This could lead to an upsurge in malicious posters switching to such sites to attack British (and EU) businesses and citizens – potentially hugely undermining the effectiveness of UK legislation.

KwikChex previously provided input in terms of these issues and will send further observations to the Ministry of Justice, particularly in terms making recommendations to avoid harassment of genuine and fair reviewers and a possible flood of vexatious challenges.

Criminal prosecution

In addition to the proposed changes to civil laws, there is an upsurge of cases being reported to police under harassment or malicious communications laws. Where malicious attacks are persistent and / or numerous, victims can file complaints with the police which can lead to criminal prosecution of the authors. We consider it highly likely that this upward trend will continue – something that will put excessive strain on police resources.

Other contentious online content

Of course, it will not only be reviews that fall under the new laws – any published contentious online content involving disputed allegations will do so – *(notably blogs), which will give rise to further challenges. Google will come under particularly severe pressure because of its several resources that are used in online defamation, such as Google Reviews, blogs and YouTube.

Further and immediate solutions

KwikChex is pressing ahead with immediate measures that we believe will clearly identify the rogue elements in online reviews by subjecting many sites and cases to greater scrutiny. We believe these actions will compel the publishers / distributors of online feedback to make changes and resolve specific issues and cases. They will focus on both defamatory / hate material and also on businesses posting fake good reviews in efforts to dupe and cheat consumers. The effect will be to reinforce freedom of speech – and to help stop it turning into freedom of deceit.

Post by Editor