10 July 2020 by Soshana Day

How to protect your reputation online from false statements

Whether you are seeking to expand your network or exploring new avenues for your business, electronic platforms (such as websites and social media) are being utilised to increase commercial opportunities. It is increasingly important to maintain an online image that is truly reflective of you and/or your company; however, this also opens up the possibility of defamatory or inaccurate statements being made by others which can have a damaging impact to your reputation and also may cause financial loss to you and/or your company.

If this occurs it is important to act quickly in considering how to deal with the statement. Firstly, to limit the potential financial and reputational damage that may be caused and secondly because there are time limits within which certain action must be taken.

Two of the potential options available are:

1. Defamation

This option provides a mechanism to seek a remedy for damage to your reputation if a statement is published, without lawful justification or defence, that would tend to lower your reputation “in the estimation of right thinking members of society generally” (Sim v Stretch [1936] 2 ALL ER 1237) and has caused or is likely to cause ‘serious harm’.

In determining what amounts to ‘serious harm’ the Court will consider the defamatory meaning of the words along with all the relevant circumstances and whether it can be drawn by inference. If you are considering this option, you should act quickly as you have a year from when the statement is first published to bring the claim, regardless of whether the statement is then subsequently reposted.

2. Malicious falsehood – financial damage

This option seeks to provide a remedy for actual financial loss caused as a result of an untrue statement that is posted maliciously. Unlike defamation, there is no requirement to prove that the statement is defamatory; however, you must prove that the statement is untrue, has been made dishonestly and the statement has caused or is likely to cause you actual financial loss.

Potential issues with defamation and malicious falsehood

To pursue a claim for defamation or malicious falsehood, you will need to prove that the statement has been written about you, and published to a third party. You can take action against anyone who was involved in the statement’s publication, including but not limited to the author, editor or publisher.

An issue may arise if the statement has been written anonymously, which is often the case. The option to post and write content anonymously online creates a perceived veil for people to express their opinion and make comments online without consequence. It is a common misconception that, if you cannot find the author, then the internet service provider or Website Operator (WO) will become liable for the contents of the statement; however, the Defamation Act 1996 provides a defence against a claim for defamation to a party who can show that:

  1. he was not the author, editor or publisher of the statement complained of;
  2. he took reasonable care in relation to its publication; and
  3. he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

The WO does have an obligation to have a formal procedure to deal with complaints regarding defamatory content pursuant to the Defamation (Operators of Websites) Regulations 2013. The regulations detail a response procedure and set time frames within which the WO must (a) acknowledge receipt of a notice of complaint, (b) communicate with the author to request permission to confirm their identity and (c) report back to the person who made the complaint. If the WO cannot identify or contact the author, the WO must remove the statement from their platform.

These are by no means the only options available, and some further consideration of whether an adequate remedy could be found using the Protection from Harassment Act 1997, data protection laws or the E-Commerce Regulations 2002 should also be considered amongst others.

There is a risk that any action taken to dispute the untrue statement and minimise its impact may in fact end up further publicising it; however, this should not be a barrier to considering the options available, which can form a strategy to limit the impact of the comment and seek its removal.

If you have any questions relating to this blog, please contact a member of our Dispute Resolution team.

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