Trustpilot: Causation the big problem, says judge
A law firm has failed in a defamation action over negative reviews about it on Trustpilot, with the High Court ruling that it could not prove they caused any financial loss.
Leeds firm BW Legal argued that the reviews led to its failure to secure a multi-million pound debt recovery contract with mobile phone provider Three.
But, striking out the claim, His Honour Judge Lewis, sitting as a High Court judge, said it was “improbable” that the firm could prove that three specific reviews were seen by Three and, even if it could, that this resulted in the loss of opportunity.
The broader context was that there were a lot of comments and reviews about the firm on consumer websites, he said. “The evidence suggests that these reviews are overwhelmingly negative about the way in which the claimant does business.
“Of course, it needs to be remembered that most of these reviews are likely to have been posted by the people against whom the claimant has sought to recover money. These third parties are not clients or customers of the claimant.
“It seems extremely unlikely that any of them will have sought out the claimant or wanted to be the recipient of the claimant’s debt recovery services.”
BW Legal, a specialist debt recovery law firm, originally sued Trustpilot in respect of 136 reviews, which it later reduced to 20 posted between February 2020 and July 2021, which were on average viewed between 1,000 and 2,000 times.
In January 2023, Mrs Justice Tipples found the meaning of each defamatory in common law.
BW sought damages of up to £50,000, an injunction and an order under section 12 of the Defamation Act 2013 that Trustpilot publish a summary of the court’s judgment.
Trustpilot applied for summary judgment on the basis that the firm had no real prospect of establishing that publication of the reviews had caused or was likely to cause it serious harm and serious financial loss, as required by the Act.
BW made a plea of actual financial loss arising from not securing the contract with Three, along with a “general inferential plea” that the reviews would have been read by prospective clients who had decided, or would decide, not to instruct it.
The firm said it would have made a £3.7m profit on a £5.5m turnover over a seven-year period, had it won the contract.
In September 2020, Three gave its Trustpilot reviews as one of two reasons given for not proceeding to consider BW’s bid, “although this was a general observation about feedback on the site which did not mention specific reviews or comments”, the judge observed.
BW was able to convince Three to reconsider but it still eventually lost out, with the sole reason the company gave being that it wanted to stay with its existing supplier.
“The response was extremely positive about the claimant, making clear that it would be open to working with them in the future,” HHJ Lewis said.
Only three of the 20 reviews had been published at the time BW said it lost the opportunity of the contract.
The judge said: “In terms of causation, it seems improbable that the claimant would be able to prove that the three specific reviews were seen by Three, and equally improbable that even if it could, the claimant could also prove on the balance of probabilities that this resulted in the loss of the opportunity, especially given everything else that was being said about the claimant on the defendant’s sites and others.”
The inferential case was based on the possibility that prospective clients would check Trustpilot, as Three had done.
Causation was again the problem, said HHJ Lewis. “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…
“If it could, one would expect to have seen something more from the claimant, given that some of the [reviews] were published some four years ago.”
The judge concluded that BW did not have a real prospect of success in proving on the balance of probabilities that each or any of the reviews caused, or was likely to cause, serious financial loss, and granted summary judgment to Trustpilot.
Barry Coulter, counsel representing BW Legal, commented: “BW Legal firmly believe that businesses and individuals in their situation, who do not subscribe to Trustpilot services, are left in an impossible position when false and defamatory statements are published online.
“They are unable to say what the real extent of the harm caused to them is, when they do not know how many potential clients could not engage after seeing such libellous material.
“However, we are pleased to note that HHJ Lewis found that Trustpilot’s anonymous reviewers were neither clients or customers of BW Legal, which was BW Legal’s position from the outset as it goes against Trustpilot’s own guidelines.
“Whilst we are disappointed with this decision overall, we are considering our next steps, including an appeal.”
This was not the first time BW Legal has sued over negative online reviews. In 2022, it failed in a bid for a Norwich Pharmacal order aimed at uncovering the identities of people who posted reviews about it on the Glassdoor website.
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