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Does Writing A Bad Review Amount To Defamation?

At what point can a negative review subject the author to liability for defamation? Bad Google reviews can make or break a business, with a single negative comment enough to turn away a potential customer or client. Negative reviews can alert consumers of issues, and alert business owners on areas they need to improve. With some reviews being snarling, negative attacks, it raises the question of whether such a public display of negativity is defamation.  

So, when is a Google review considered defamatory? What is the line between someone sharing their honest opinion in the review and that review becoming defamatory? 

WHAT IS DEFAMATION?

Defamation is concerned with injury to reputation resulting from words written or spoken by others.[1] Where one makes a statement or writes with the aim of lowering the estimation of a plaintiff by right-thinking members of the society amounts to defamation. Also, exposure to hatred, contempt, ridicule, discredit or injury to financial credit is defined as defamation.

Thus, it is defamation when a statement is published (and is seen by at least one person) and could be considered to have lowered the reputation of the mentioned person or business in the eyes of the public. 

However, we must note that there is an initial presumption that a defamatory statement is untrue but if the defendant can prove that the statement is substantially true, he will have a complete defence to an action for defamation.

TYPES OF DEFAMATION
LIBEL is a form of defamation and covers false statements communicated in writing or in print that injure another person’s reputation or business. Accordingly, defamation is in permanent form and it takes the form of being written or printed in a permanent form. It could be a newspaper, a book, a letter, painting, cartoon, photograph, statute or film.

SLANDER on the other hand is defamation often through spoken words or gestures.

The subject of this article is a novel and uncommon concept in Nigerian jurisprudence, with very few cases ever getting to be decided on this point, in other foreign jurisdictions, there are numerous legal pronouncements that may become very persuasive for Nigerian courts and legal practitioners. However, Since there are no special rules that apply to the Internet or social media, traditional defamation analysis applies to online content as it would to any other written publication. Google reviews are, therefore, ripe for defamation claims with negative reviews often viewed by multiple people online, which can have a considerable effect on the reputation of the reviewee. 

WHO CAN MAKE A CLAIM FOR DEFAMATION?
In Nigeria, a dispute may involve the legal interests of individuals, corporate bodies, ordinary statutory bodies, firms, government, associations, group of persons and other entities. However, not everyone can claim they have been defamed.

The only entities who can commence a defamation action are natural and juristic persons which can sue and be sued. Natural Persons are human beings while Juristic or Artificial Persons are bodies corporate registered under Part A of the Companies and Allied Matters Act 1990 and Statutory Corporations and Trustees of Associations registered under Part C of the Companies and Allied Matters Act 1990. They must be living or existing at the time of institution of the action.[2]

In foreign jurisdiction like Australia, not everyone can claim they have been defamed. The only parties who can commence a defamation action are:
*A living person (proceedings cannot be brought by or continued on behalf of a deceased estate);
*A not-for-profit corporation; and
*A small corporation with fewer than 10 employees.

Thus, if the review was not made against one of these types of people or businesses, it is not possible to start a defamation claim. 

It is important to note a person or business does not need to be specifically named in the Google review for it to be defamatory. The person only needs to be identifiable by the description in the review, such as ‘the DG of NCDC’, ‘the owner of the Next Cash n Carry’ or the ‘restaurant in Leadway House, Central Business District’. 

It may also be defamatory if there is a reference to a class of people. For example: ‘All the shop assistants at shop XYZ are …’.

DEFENCES TO DEFAMATION? 
In Nigeria, there are four common defences which can be relied upon in actions for defamation: justification (i.e. truth), fair comment (honest opinion), absolute privilege and qualified privilege. The truth defence and honest opinion defence are the most suitable defences in cases relating to the subject matter of this article.

Truth defence
It is a complete defence to an action for libel or slander that the words complained of were true in substance. The Plaintiff does not have to prove that it is false, for the law presumes this in his/her favour[3] but if the defendant can prove it is the truth, he will defeat the plaintiff’s claim[4]. It doesn’t matter if the defendant was driven by malice.

Thus, if the claims made in the Google review are true, you cannot claim defamation. This is a complete defence to any allegations. 

Honest opinion defence
It is a defence to an action for libel or slander that the statement complained of was fair comment on a matter of public interest. This defence is backed by the fundamental right to freedom of expression if the comment was fair within legal definition and it is up to the Courts to determine.

Thus, a person is entitled to publish an honest opinion in their Google review, and this cannot be considered defamation. If the person writing the Google review honestly held the opinion and this opinion is based on truth, this is a defence against defamation. Honesty is crucial and it doesn’t need to be proven that the opinion was correct, only that it was genuinely held.

A good example is the foreign case of Bently Reserve LP v. Papaliolios, which arose from Papaliolios’s negative Yelp review of an apartment building. A California appeals court clarified that in determining whether a statement expresses or implies a provably false assertion of fact, the court will look to the totality of the circumstances. The court found that Papaliolios’s statements could reasonably be interpreted as defamatory. Although he used some hyperbole and name-calling, such as calling his landlord a “sociopathic narcissist” who “celebrates making the lives of tenants hell,” he also asserted specific facts about the building at issue, including alleged activities by the plaintiffs that “likely” contributed to the deaths of three tenants. The court rejected Papaliolios’s argument that the use of the word “likely” insulated him from liability and noted that Papaliolios’s statement was presented as a “first-hand experience.”

The case reached the Court of Appeal after Papaliolios filed an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion under California law. Anti-SLAPP motions allow defendants to move to dismiss a case brought against them on the basis that it would chill speech on an issue of public interest. Twenty-nine other states and territories have enacted anti-SLAPP laws. Had Papaliolios been successful, he would’ve been able to dismiss the case without having to proceed to trial. However, the court found that plaintiffs had made the requisite minimal showing as to the merits of their libel claim, so Papaliolios’s anti-SLAPP motion was properly denied.

Under Nigeria law, here are requirements for the honest opinion defence:

-The matter commented on must be one of public interest.
-The statement must be a comment or opinion and not an assertion of fact. 5
-The comment must be based upon facts truly stated. 6
-The comment must be “honestly” made. 7
-The comment must not be actuated by express malice. 8

However, even if this honest opinion defence is established, it can still be overcome, and the Google review considered defamatory if it can be shown:

Absolute Privilege
Absolute privilege is a complete defence to an action for libel or slander, however false or defamatory the statement may be and however maliciously it may have been made. It arises in circumstances such as proceedings in the Legislature or in a court of law where public policy demands that persons should be able to speak or write with absolute freedom, without fear of liability for defamation[9].

For instance, anything a witness says in the witness-box will be protected if it is with reference to the subject-matter of the proceedings[10]. It must not be relevant in law. The privilege extends to defamatory statements contained in trial and pre-trial documents, such as pleadings and affidavits[11], and to communications between advocates or solicitors and witnesses before the trial.

Statements made in proceedings of the legislature[12] fall within this defence. Communications made by one officer of state to another officer in the course of his official duty is also covered by this defence[13].  The reports of judicial proceedings also fall within this defence.

Qualified Privilege
Here, protection is given to persons who make defamatory statements in circumstances where the common convenience and welfare of society demands such protection. Thus, it is in public interest that persons should be able to state what they honestly believe to be true without fear of legal liability. Examples are

REMEDIES
The usual remedies available to the Plaintiff in cases of defamation are just like other civil cases. The remedies depend on the peculiar facts of each case and the cause of action before the court.

General damages are awarded by way of compensation as the law presumes that the libel published has caused damage to the Plaintiff’s reputation.

Special damages are awarded by way of compensation in certain cases, which must be proved, such as loss of business, earnings and profits as a result of the defamatory statement.

Injunctions are reliefs handed down by the courts which can forbid or ban the publication or continued publication of the offending statement prior to conclusion of the substantive action for defamation. It must be noted however that such injunctions are rarely granted if the Defendant claims the statement is true or in the existence of some other good defence. It is also unlikely that the court will grant an injunction if it is proven that the publication sought to be restrained has already been published, which simply means that there is actually nothing to restrain as it were and as such the court will not be willing to grant an injunction over a completed act.

 The court may also award exemplary and aggravated damages depending on the peculiarity of the case.

BAD REVIEWS BY ANONYMOUS USERS
As was earlier noted, the subject of this article is a novel and uncommon concept in Nigerian jurisprudence, with very few cases ever getting to be decided on this point, in other foreign jurisdictions, there are numerous legal pronouncements that may become very persuasive for Nigerian courts and legal practitioners. Foreign courts are also dealing with the issue of anonymous users.

In the case of Yelp, Inc. v. Hadeed Carpet Cleaning, Hadeed served a subpoena on Yelp seeking the identity of seven anonymous Yelp reviewers who had written negative reviews of the carpet cleaning service. Hadeed alleged that it couldn’t match the reviews with its customer database, and therefore believed that the reviewers were not, in fact, actual customers. Hadeed further alleged that the reviews were defamatory because they falsely stated that Hadeed provided poor service to each reviewer.

The Virginia Court of Appeals recognized that anonymous speech is protected by the First Amendment, and “an Internet user does not shed his free speech rights at the login screen.” However, the right is not absolute. If the reviews were lawful, then the reviewers could remain anonymous, the court noted. Ultimately, however, the court found that Hadeed established a legitimate, good faith basis for its belief that the reviews were defamatory because it had no record of providing services to these posters. If the reviewer is not, in fact, a customer, then the review cannot be an opinion; the review is based on a false statement of fact, held the court. The subpoena was therefore proper, and Yelp was required to comply with it.

CONCLUSION
Disputes arising from online reviews happen often[14] and they continue to increase, as the value of online reviews are critical to any business. While there are no special rules that apply to the Internet or social media when it comes to defamation, how the courts apply traditional defamation rules to online behaviour and anonymous users will be important to monitor.

If you believe you have been defamed on the internet or social media, you should seek legal advice on the merits of your claim as soon as possible after the material is published. A letter from a lawyer putting the offending parties on notice is enough for the removal of the review. 

However, there is the need for all service providers and consumers, for the sake of sanity and a better society to be fair and true to themselves as well as devolve means of settling disputes to avoid such dispute from rearing its head.  


[1] Kodilinye and Aluko: The Nigerian Law of Torts, op. cit p.136
2] Fidelis Nwadialo : Civil Procedure in Nigeria, 2nd Edition 2000 at p.89
[3] Akurefe v. The Sketch Publishing Co. Ltd (1971) 1 U.I.L.R. 13 at p 16
[4] Kodilinye and Aluko: The Nigerian Law of Torts, op. cit p.160
[5] Nthenda v. Alade (1974) 4 E.C.S.L.R. 740
[6] Bakare v. Oluwide (1969) 2 All N.L.R. 324 at p. 332
[7] Slim v. Daily Telegraph Ltd (1968) 2 Q.B. 157 at p. 170
[8] Bakare v. Ibrahim (1973) 6 S.C. 205 at p.215
[9] Kodilinye and Aluko: The Nigerian Law of Torts, op. cit p.160
[10] Seaman v. Netherclift (1876) 2 C.P.D. 53 at pp. 56,57 per Cockburn CJ  it was held that if the witness were to take advantage of his position to utter something having no reference  whatever to the proceedings in hand in order to assail the character of another, he would  not be protected.
[11] Foley v. Asfour (1970) N.N.L.R. 37, Adene v. Oyeyemi (1969) N.N.L.R. 37
[12] Goffin v. Donnelly (1881) 44 L.T. 141
[13] Chatterton v. Secretary of State for India (1895) 2 Q.B. 189
[14] Though such disputes rarely make it to the court of law.

Augusta Yaakugh
Author: Augusta Yaakugh

I'm legal practitioner experienced in corporate law practice and human rights.

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