What does my Trustpilot review really mean?

 

This article looks at a current Trustpilot review legal battle and the need for defamation lawyers to monitor developments closely.

The recent judgment handed down by Tipples J in the ongoing libel action BW Legal Services Limited v Trustpilot [2023] EWHC 6 (KB) provides useful guidance as to how the court will approach the preliminary issue of meaning in defamation cases concerning online reviews.

Twenty reviews were published regarding a debt recovery law firm, BW Legal Services, on the popular online review platform Trustpilot, between 21 February 2020 and 21 January 2021.  The reviews contain various allegations, including that the firm allegedly sought non-existent debts and harassed its clients in doing so. It is important to note that this is a judgment on the preliminary issue of meaning only. We are eagerly awaiting further developments in this case, namely which defences Trustpilot will plead, and whether BW Legal Services is able to establish the serious financial loss required by section 1(2) of the Defamation Act 2013!

Who is the hypothetical reasonable reader?

Tipples J makes clear that in determining meaning, “the essential question is how the words would strike the ordinary hypothetical reasonable reader” (para 18). In Trustpilot reviews, this is someone intentionally looking for information about a business they have an interest in.  After drawing on the well-established principles set out in Koutsogiannis v The Random House Group [2020] 4 WLR 24 (the hypothetical reader is not naïve, but not unduly suspicious), Tipples J affirms that in the extant case, the reasonable reader is a “typical” reader of Trustpilot, acknowledging that “each review is posted by a separate individual reviewer, based on that individual’s experience with the claimant” (para 19).

What about the context of the review?

This case turns to the interesting question of how one should read online reviews and in what context when considering their meaning. Trustpilot argued that the reasonable reader (whilst not reading every review on the site) will likely read more than one review, and so the review in question should be read within the context of those other reviews. Ultimately, Tipples J disagreed: “extrinsic material is only legitimately admissible as context if it is known to all readers. Therefore, given the nature of the Trustpilot Website, I agree with the claimant that the only material which is legitimately admissible as context is the review itself” (para 26).

Can ratings form part of the meaning?

Users of Trustpilot will be familiar with the star rating system. Trustpilot submitted that a 1-star review should form part of the meaning, to advance ‘BW Legal is a 1-star company’. Tipples J rejected this, which lawyers will have to bear in mind when submitting meanings for future cases involving sites adopting similar rating systems (para 33).

Are reviews statements of fact or opinion?

BW Legal Services put forward that Trustpilot invites users to narrate their lived experiences with companies, which should be read as statements of fact (para 36). Trustpilot on the other hand argued that the site asks users (who are usually aggrieved) to reflect on their experiences, which they can do so using an “uninhibited” vocabulary, and as such renders the statements expressions of opinion. Settling the position, Tipples J went on to state that all twenty reviews complained of were to be treated as statements of fact which included an expression of opinion (39).

What makes a review defamatory at common law?

Citing Lachaux v Independent Print Ltd [2019] UKSC 27, Tipples J reaffirmed that a statement is defamatory at common law if it “substantially affects in an adverse manner the attitude of other people towards him, or has a tendency to do so” (para 40). All twenty reviews were found to be defamatory at common law, supported by Tipples J’s explanation that the words complained of “would lead ordinary people of ordinary sense to the opinion that the Claimant conducts its business of debt recovery in an improper manner, and will have a substantial adverse effect on people’s attitudes towards the Claimant” (para 43).

What can we learn from the approach of Tipples J to meaning?

Review two accused the firm of allegedly chasing a non-existent debt, using the word “scammers” explicitly. The question for the court was whether the ordinary reasonable reader would infer the meaning of “scammers” to mean “fraudsters”, which the claimant contended.  Tipples J found that the ordinary reasonable reader would infer “scammers” to mean “fraudsters”, which they reiterated in their analysis of review nine, “A scam company at best” (para 121).

Of emphasis in the judgment, is that any terminology used by either party when submitting a meaning must be accurate. Review six went as follows: “total scumbags and charlatans. Keep record of all dates and documents or they will lie to you and manipulate you into paying something you shouldn’t have to pay” (para 94). BW Legal Services argued that the meaning of these words alleged that the firm behaved “fraudulently” and “oppressively” in pursuing debts, which Trustpilot perceived as “strained, artificial and inappropriately legalistic” (para 98). Tipples J labelled the claimant’s submission on meaning as an “inappropriate and inaccurate gloss of the words used” because the reasonable reader would not understand the words complained of to mean “fraudulent” or “oppressive” behaviour, given that these terms were not used in the review. This is a clear reminder that parties making submissions on meaning should not put forward ones using inexact language.

Another question for the court was whether the meaning of review twelve, which accused the claimant of “GDPR violation, data harvesting and nuisance calls” meant that the firm had behaved unlawfully (para 148). Tipples J found that the hypothetical reasonable reader would be alert to the fact that the person writing the review does not “know” if a claimant harvests the personal data of individuals, preferring the word “may”. The ordinary meaning of the words contained in the review was “BW Legal may be harvesting data to accuse innocent people of fictitious debts or fines” (para 156). Defamation lawyers should therefore avoid using language when submitting meanings which could be perceived as excessively broad.

Throughout the judgment, Tipples J is mindful of the “uninhibited language” used by Trustpilot users. Review seventeen accused the firm of being “thieving con artists… it should be illegal to operate like that… threaten you and ruin your credit until you’re ready to jump off a bridge and pay them”. The claimants proposed that this meant the claimant makes threats of force and threatens people to the point of committing suicide. Tipples J took issue with the addition of “force” since the reasonable reader would understand that the threats made out in the review did not refer to force and that it was “part of the uninhibited language used by this reviewer” (para 198).

This is not the first time that the courts have been faced with considering whether Trustpilot reviews are capable of being defamatory. In the case of Summerfield Browne Ltd v Waymouth [2021] EWHC 85 (QB), the Defendant Philip Waymouth, a former client of the claimant law firm, posted a poor review of the law firm Summerfield Browne, deploying the words “scam solicitor”. Turning to the question of serious harm, Master Cook concluded that “it is a serious matter to accuse a solicitor’s firm of dishonesty and any such allegation is likely to deter those who are unfamiliar with the firm from using its services. There is supportive evidence that the number of enquiries fell dramatically after the review was posted…there has been a financially damaging impact for a period of at least three to four months” (para 30). Waymouth was ordered to pay £25,000 in damages, which you can read in the judgment linked here.

Whilst this case is a helpful indicator as to how the question of serious harm could be dealt with in a final judgment arising out of the case of BW Legal Services Limited v Trustpilot, it is imperative to note that in Waymouth, the claimant sued the individual user of Trustpilot, and not Trustpilot itself. Defamation lawyers will therefore be following closely, the upcoming developments in the case of BW Legal Services Limited v Trustpilot, since any future judgment could have immense ramifications for review websites (think Tripadvisor, Checkatrade, Which? to name just a few!).

For more information:

You can access the full judgment of BW Legal Services Limited v Truspilot here.

For more information on Taylor Hampton’s Defamation Department see here.