BW Legal libel claim fails against Trustpilot

Introduction

Law firm BW Legal has had its libel claim against Trustpilot disposed of by way of Summary Judgement, after His Honour Judge Lewis (sitting as a Judge of the High Court) found that BW Legal (or specifically BW Legal Services Ltd) had failed to establish its case under Section 1(2) of the Defamation Act 2013.

The Law

The law under Section 1 of the Defamation Act 2013 is relatively straightforward:

(1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2)For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

The essence of this means that in the case of a company or business, it can’t simply complain to the Court that somethings is “defamatory”. It has to specifically prove that as a result of the specific defamatory comment made, there has been a loss caused. Not only does it need to prove that, but it needs to be catorgorised as “serious”.

This is one of the things that came about in the reform of the Defamation Act, where Parliament wanted to reduce the amount of abusive libel claims, or more commonly known SLAPPs.

The Libel Claim

Trustpilot is of course a well known website which members of the public use to review companies. Many companies have 4* or even 5* ratings – but BW Legal seems to attract a large number of adverse complaints.

BW Legal is less of a law firm (as the name would imply), and more of a debt collection agency. It works with a number corporate companies such as Virgin Mobile, Parking Eye, British Gas, NCP Car Parks, and so forth collecting alleged debts, and sometimes takes court actions as a law firm. As website Parking Prankster explains, it can be the case that these ‘debts’ are chased irrespective of merit, and where the alleged debtor strongly denies the debt.

In its original claim, BW Legal claimed that some 136 reviews that were left on the Trustpilot website had a cause of action under Section 1(2) of the Defamation Act. Namely BW Legal had lost a tender to mobile phone provider Three for debt collection work.

The number of reviews complained of was then reduced down to just 20 reviews in a re-amended Particulars of Claim. When HHJ Lewis applied the correct chronology [41], it was only 3 reviews in total that BW Legal sought to rely on – out of some 4000+ reviews available on Trustpilot of BW Legal.

HHJ Lewis found that [84]:

Given the volume of negative reviews published on the defendant’s website at the relevant time, it seems improbable that the claimant will be able to show that any loss (or likely loss) it has suffered was caused by a specific publication.

And at [85]:

On the evidence available (or likely to be available) the claimant does not have a real prospect of being able to show that each of the Twenty Reviews (or any of them) has actually caused serious financial loss. If it could, one would expect to have seen something more from the claimant, given that some of the Twenty Reviews were published some four years ago.

The key issue that BW Legal had, was under Section 1(2) of the Defamation Act 2013, which is proving the post had directly attributed to financial loss [83]:

Again, the main problem though for the claimant is causation. The claimant bears the burden of showing that any proven serious financial loss is more likely than not to be a result of each review complained of, rather than some other cause or causes. It has chosen to sue in respect of just twenty of the reviews that had been published at the time. It cannot rely on any harm caused by material on the site that it has not sued on to establish harm caused by those that it has. It must show that each of the Twenty Reviews caused, or was likely to cause, serious financial loss.

The claim BW Legal was making as in relation to a lost tender with phone provider Three. However, there appeared to be other reasons why BW Legal didn’t win the tender – ostensibly more fundamentally because Three had an incumbent supplier they had worked with for 10 years.

Ultimately, being unable to provide and evidence of financial loss in respect of the review complained of, and being unable to show that competing causes didn’t lose the Three tender – the claim was disposed of by Summary Judgement.

Opinion

Firstly, this is the kind of claim that Parliament were trying to avoid being brought. Where basically a company sues for defamation because those that dealing with it are unhappy – even though they may well have legitimate reasons for raising those complaints. Possibly this claim itself is all the more egregious as BW Legal weren’t targeting the authors of the reviews – but a third party who was facilitating the publication. Although Trustpilot is no doubt well-resourced enough to fend off this type of claim – it could potentially still fall into the category of a SLAPP.

The second point of interest is because the claim failed under Section 1(2) of the Defamation Act. It’s a good example of how precise a corporate claimant must be concise in proving their case – and that the Court can’t simply draw inferences.

The case that BW Legal were bringing was novel. Even if they were able to get over the financial loss threshold, they’d then need to prove that it was “serious”. Even if they could prove any loss was “serious”, they then still had the hurdle of dealing with the fact that Trustpilot hadn’t actually written the reviews themselves.

In reality, the technicalities of Section 1(2) of the Defamation Act aside, it was a claim that hopeless and eventually bound to fail.