How to Protect Your Reputation Online: When Defamation Law Applies

Online defamation has become one of the most common forms of reputation dispute. Reviews, social media posts, forum comments, and blog articles can reach large audiences quickly and cause serious damage to both personal and professional reputations. Understanding when defamation law applies in an online context, and what can be done about it, is increasingly important.

What makes an online statement defamatory

For a statement to be defamatory under English law, it must have been published to at least one person other than the claimant, it must have referred to the claimant, and it must have lowered the claimant's reputation in the eyes of a reasonable person. For online statements, the publication element is easily satisfied where the statement is visible on a public platform.

Importantly, under the Defamation Act 2013, a claimant must also demonstrate that the statement has caused or is likely to cause serious harm to their reputation. For businesses, the harm must be serious financial loss. This threshold was introduced to deter trivial claims, and whether it is met depends on the nature of the statement, the audience it reached, and the actual or likely consequences.

Online reviews

Online review platforms present a particular challenge. A false and damaging review on Google, Trustpilot, or a sector-specific platform can deter potential customers and cause real commercial harm before it can be removed. Where a review contains false statements of fact presented as though they are based on genuine experience, defamation law may provide a remedy.

The first step in dealing with a damaging online review is usually to report it to the platform for removal. Most platforms have processes for reviewing and removing content that violates their terms of service. Where a platform removes the content, that may be sufficient. Where it does not, or where the author is identifiable and the content is clearly defamatory, legal steps become more relevant.

Social media defamation

Defamatory statements on social media platforms, whether on X, Facebook, LinkedIn, Instagram, or others, follow the same legal principles as any other publication. The fact that a post is brief or informal does not affect whether it is defamatory. What matters is the meaning a reasonable person would take from the statement and the impact it has on the claimant's reputation.

Where the author of a defamatory social media post is known, a pre-action letter setting out the legal position and requesting removal and an apology is often an effective first step. In many cases this prompts the removal of the post without the need for court proceedings.

Where the author is anonymous

One of the more complex aspects of online defamation is dealing with anonymous or pseudonymous authors. English law provides a mechanism, through a Norwich Pharmacal order, to require a platform or internet service provider to disclose information that may identify the person responsible for the publication. This can be an important step where the identity of the author is not known but the damage caused by the publication is serious.

The distinction between fact and opinion

Not every critical online comment is actionable. The law distinguishes between statements of fact and statements of opinion. A statement of opinion, clearly expressed as such and based on facts that are true or substantially true, may be protected by the defence of honest opinion. Understanding whether the statement complained of is a statement of fact or opinion is an important part of assessing whether a defamation claim is likely to succeed.

Acting promptly

Defamation claims have a limitation period of one year from the date of publication. Where a statement remains online and continues to be accessed, questions of continuing publication can arise. Acting promptly both limits the ongoing damage to your reputation and preserves your legal options.

If you are concerned about damaging content published about you or your business online, contact us today to discuss your options with a specialist barrister.