BW Legal Services Limited v Trustpilot A/S

In determining the meaning of online consumer reviews, the court must identify the single natural and ordinary meaning conveyed to the hypothetical reasonable reader. The review itself is the relevant context where other reviews are not known to all readers. The assessment should reflect the informal, impressionistic way in which online reviews are read, while avoiding over-elaborate or overly technical analysis.

A review may contain both factual allegations and opinions. A description of personal experience remains factual even where evaluative language follows. An opinion satisfies section 3(3) of the Defamation Act 2013 if the publication indicates its general or specific basis. A company may sue where the words tend substantially to affect adversely people’s attitudes towards its business.

The claimant, a debt-recovery law firm, brought a libel claim concerning twenty consumer reviews published on the defendant’s Trustpilot website. The claim sought damages, an injunction and relief under section 12 of the Defamation Act 2013.

Nicklin J directed a trial of preliminary issues concerning the natural and ordinary meaning of each review, whether the meanings were defamatory at common law, whether the statements were fact or opinion, and whether any opinion indicated its basis. The judgment determined meaning only. No substantive defence, including truth or honest opinion, was adjudicated.

1. Meaning and context. The court applied the established principles summarised in Koutsogiannis v The Random House Group Ltd. The task was to determine the single natural and ordinary meaning of each review as it would strike the hypothetical reasonable reader. The reader was not naïve or unduly suspicious, and the court avoided a lawyerly or overly literal approach.
2. The Trustpilot profile was an online consumer-review platform. The review itself was admissible context. Other reviews were not admissible as context because it was speculative which reviews a particular reader would have seen and the material was not known to all readers. The one-star rating formed part of the context and indicated that the claimant was a bad company, but added nothing to the meaning of the words complained of.
3. The online setting required a somewhat impressionistic assessment. Reviews could be informal, colloquial, uninhibited or poorly expressed. Each review had to be considered individually and in its own context.
4. Fact and opinion. Each review contained statements of fact, together with expressions of opinion. The reviewer’s account of personal dealings was factual. Descriptions such as fraudsters, bullies, shocking company or harassment were generally opinions based on the narrated experience. The addition of comment did not convert the underlying factual account into opinion.
5. Defamatory meaning. Applying the common-law test, the meanings found for all twenty reviews tended substantially to affect adversely people’s attitudes towards the claimant. They conveyed that the claimant conducted its debt-recovery business improperly, including by pursuing disputed or unpaid debts and, in some reviews, by fraud, harassment, intimidation or bullying.
6. Basis of opinion. Section 3(3) of the Defamation Act 2013 requires only sufficient indication of the general or specific subject matter forming the basis of the opinion. Each review narrated the reviewer’s experience, which supplied that basis.
7. The preliminary issues were determined accordingly. The claim was not finally determined and no substantive defence was adjudicated.

First-instance determination of preliminary issues. The judgment records an order by Nicklin J dated 18 February 2022 directing the trial of meaning, defamatory tendency, fact or opinion, and the basis of any opinion.