Navigating the Maze of Anonymous Reviews: Legal Options and Challenges
28th February, 2024
Negative customer reviews are an unfortunate part of doing business for most companies. We are regularly asked to advise on dealing with disparaging, untrue (and sometimes malicious) customer reviews online, which can often have a very real impact on a business.
Dealing with negative reviews can take up a huge amount of time, resource and emotional energy. They can be particularly frustrating to deal with when the individuals concerned post anonymously.
Online customer interactions are an incredibly valuable marketing tool for many businesses, but there is little that can be done (at least in legal terms) when these feature general customer gripes and complaints, however irritating they might sometimes be. Often our advice in such cases is that sending a lawyer’s letter is likely to be counterproductive. However, when those complaints cross the threshold and become actionable as being potentially unlawful, steps can be taken against the individual concerned.
All social media platforms have reporting tools which can be utilised in those circumstances, and this is often a sensible first step, although often the platforms will be slow to react, except perhaps in the most extreme cases. Often it will therefore be left to the business to take legal action if it wishes to remove the potentially unlawful content. However, in the context of anonymous reviews, there is an obvious practical difficulty in taking such action – namely how to find out who is behind the post in question.
Anonymous reviews
Parties are able to do that by applying to the Court for a specific type of relief, called a Norwich Pharmacal Order (“NPO”), which if granted lifts the veil of anonymity and orders the identity of an anonymous person to be revealed. A recent judgment has clarified the circumstances in which NPOs will be granted in cases of anonymous online reviews, and reaffirmed that there is a general public interest for those who post anonymous comments to have their privacy respected.
Govdata v Indeed
In Govdata Limited v Indeed UK Operations Limited (“Govdata”) the claimant company took issue with four comments which had been posted on the well-known ‘Indeed’ job search website and forum, which were highly critical of Govdata and its management. Govdata argued that it had the right to seek legal redress for what it considered were untrue and harmful statements. However, as the reviews in question were posted anonymously, Govdata was unable to identify who had made them in order to bring legal proceedings. Therefore, Govdata made an application to Court requesting that the Court grant an NPO requiring Indeed to release information about the reviewers.
NPOs are not granted routinely and the Court will determine applications to release information under a two stage step. The first step looks at whether there is relevant legal course of action, as well as whether the respondent to the application is actually in possession of relevant information which would allow that claim to be brought (the latter point being that, if Indeed in this case did not hold the information, the Court would not exercise its discretion to order an NPO).
The second part of the test requires the Court to exercise its discretion in looking at the strength of the apparent underlying case and whether that outweighs the rights of the reviewer (there being a public interest generally in those who post anonymous comments having their anonymity respected).
In this case Govdata argued that the relevant comments gave rise to various legal claims, including defamation and malicious falsehood, harassment, breach of contract, breach of privacy and misfeasance in public office. As such, Govdata sought that a significant amount of information be disclosed to them by Indeed, namely “the registrants name, age, location, IP address, telephone and mobile numbers and email addresses [and] whether they have logged into or created an identity via a 3rd party identity verification such as Facebook or google”. This of course went far beyond what would normally be viewable on a standard comment online from a reviewer who was not posting anonymously.
What did the Court decide?
The Court was critical of Govdata and specifically highlighted that:
- The underlying legal claims appeared to be weak. Some claims appeared to be out of time. Notably, no steps had been taken by Govdata to show that it had suffered any loss as a result of the reviews (which would preclude a claim for defamation);
- Govdata appeared to be acting in way which suggested that its intention was to “shut down any and all criticism of their business” and to “exact revenge” rather than seeking legitimate redress. Against that backdrop, the wide disclosure request was inappropriate.
- The scattergun tactic of highlighting numerous potential legal claims was also inappropriate in circumstances where those claims generally seemed to be unarguable; and
- There was no evidence before the Court to suggest that any author of the comments had used their anonymity to specifically seek to cause damage to Govdata.
Lessons to be learnt
The Court has made clear that there is a reasonably high bar to meet when a claimant is seeking an NPO, particularly in cases where there is a good argument for protecting anonymity (e.g. where the posts in question concern points of public interest). If the Court is to lift the veil of anonymity then any claimant needs to be careful to ensure that:
- Great care is taken in identifying the underling legal causes of action and that loss can be attributed to the comments/posts in question where claims are made in defamation; and
- The litigation is being conducted to seek genuine redress for an interference with the claimant’s legal rights, rather than any potentially improper or ancillary purpose.
Our Commercial Litigation team have a huge amount of experience in dealing with issues of harmful online content, including enforcing the removal of content from social media platforms and other websites, as well as seeking legal redress against individuals where appropriate.
If you would like advice on handling matters such as these please do get in touch with Robert Eldon, Matthew Brady or another member of our Specialist Commercial Litigation team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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