11 May 2022

Paul Motion looks at a recent case involving fake reviews on an American website and WordPress.

Online platforms displaying reviews are an increasingly trusted resource for potential customers. These reviews, once published, can be very difficult to have removed.

A recent judgement from the High Court in England (Brian Dudley v Michael Philips [2022] EWHC 930 (QB)) is believed to be the first reported case where a UK court directly ordered a USA review site to take down defamatory content, after the person posting the review said he could no longer access his account to do so.

Facts

The claimant was an investment and wealth management expert. In 2020, he discovered that the defendant, a former employee, had been writing about him on “www.pissedconsumer.com” (which possibly indicates the defendant’s feelings towards him..) and on a WordPress site.

The colourful reviews posted on the review platform, which formed the basis of the defamation claim, included “He lost all my investments…some Financial Advisor. And I understand £100,000s of others of clients’ Money.”

On the WordPress site a photograph of the claimant was posted along statements such as “[The claimant] is A FRAUD”, “A SCAMMER”, and false allegations that “[The claimant] stole my money. My entire life savings.” As such, these posts included the claimant’s personal data.

Defamation and breach of UK GDPR

The claimant raised an action for defamation with respect to the review platform, and a claim for data protection damages as regard the WordPress content. The claims were combined, and the claimant sought compensation capped at £10,000.

The poster did not defend the case and the claimant obtained a default judgement.

In considering defamation, the Court considered that the posts were available to the general world and that the most basic internet diligence would have unearthed the false reviews.

The Court noted that the UK GDPR provides that any person who has suffered material or non-material damage has the right to receive compensation, and that its power to award damages is not confined material loss and could include distress.

The Court ultimately agreed with the claimant and held that:

(i) the review platform posts were defamatory with allegations including professional incompetence, dishonesty and fraud; and

(ii) the WordPress posts contained an inaccurate representation of the claimant’s personal data, and as such UK data protection legislation had been breached.

Removal of defamatory content

Following the raising of the proceedings, the WordPress content was removed. So far so good. However, the defendant said he had lost his password for www.pissedconsumer.com. In any event, the claimant then approached the US-based online review platform direct to have the defamatory comments removed, with no success.  The Court acknowledged that the defendant wished to remove his reviews (and it appears he may have been told to do so by the review website), but apparently he could not do so without his password.

The long arm of the law

The High Court, therefore, made an order under Section 13 of the Defamation Act 2013 requiring the US website operator to remove the defamatory reviews. The Court considered the expense already incurred by the claimant and regarded the order as the most effective way of ensuring the defamatory publications were removed. It does not appear from the judgement that the claimant ever signed up to the review platform, and so he would not have accepted its terms and conditions. The review website operator did not participate in the court proceedings, and the Section 13 order contained a provision for it to apply for the order to be varied or discharged should it have any objections.

The majority of the Defamation Act 2013, including Section 13, does not apply to Scotland. However, the Defamation and Malicious Publications (Scotland) Act 2021 contains a similar provision at Section 30.

The English court’s willingness to grant this order against a US-based review platform can perhaps be contrasted with the reluctance of the Scottish courts to assert jurisdiction over Tripadvisor in Massachusetts (in Clark v TripAdvisor LLC[1](2014)). In that case, the Court refused to extend the reach of the Administration of Justice (Scotland) Act 1972 by ordering recovery of information from the USA based company, whose terms and conditions impose US jurisdiction and law. In contrast to Dudley -v- Phillips, the Tripadvisor case was defended and their terms and conditions, including choice of law, were also accepted by the pursuer when he signed up to have its business displayed on the site.

Compensation

The defamatory and inaccurate statements were duplicated “in the low hundreds”, with links to the websites having been shared to some prospective customers and clients by third parties. The Court therefore considered that damages in this claim would clearly, on a conservative basis, have been in the range of £30,000 to £40,000. Since the claimant had capped his claim to £10,000, he was awarded this full amount. It is interesting that the court would clearly have gone higher.

Summary

Review takedowns are something of a lottery with USA sites heavily in favour of freedom of expression and UK courts often less willing that their Stateside counterparts to assert extra-territorial jurisdiction, however, Dudley -v- Philips shows that occasionally the planets align to good effect. 

Had a bad review or received defamatory comment? Please don’t hesitate to contact our highly experienced Online Reputation Team:

Paul Motion, Partner & Accredited Specialist in Data Protection & FOI Law: prm@bto.co.uk / 0131 222 2932

Lynn Richmond, Partner & Certified Specialist in Cyber Security: lyr@bto.co.uk / 0131 222 2934

Lily Morrison, Trainee Solicitor: lmo@bto.co.uk / 0131 222 2939

[1] MARTIN CLARK AND JACQUI CLARK AGAINST TRIPADVISOR LLC (scotcourts.gov.uk)