Law firm fails to prove former client is behind defamatory Google reviews

Negative reviews posted on a Google Business Profile have become a scourge for many business owners.  Google is often reluctant to remove such reviews – even where they are highly defamatory and false – and the author can seek to avoid liability by posting under a pseudonym.   If the author can be identified, they can theoretically be sued, but it is important that there is a solid evidential basis to affix liability on the defendant(s), as the Claimant in Samuels t/a Samuels & Co Solicitors v Henry [2024] EWHC 2898 (KB) recently discovered.

The facts

The Claimant, Jacqueline Samuels, is a property solicitor who is a sole practitioner trading under the name Samuels & Co Solicitors.  The Defendant Chritopher John Henry was a disgruntled former client of the Claimant, who had complained to the Solicitors Regulation Authority (“the SRA”) and the Legal Ombudsman about the services he had received from the Claimant, and in particular the contents of an email written by the Claimant on 29 July 2021.

Between 31 August 2022 and 3 March 2023, the following reviews were posted on the Claimant’s Google Business Profile:-

1. "Awful law firm -the principle [sic], Jackie Samuels was awful to deal with. An unfriendly and unhelpful individual – AVOID AVOID AVOID." (“the First Review”).
2. "Used this firm last year for a matter – whilst cheaper than other quotes I had, I suppose it's true what they say – you pay what you get for! Never resolved my case communication and service was poor." (“the Second Review”).
3. "I used this solicitor last year and agree with the other reviewers. Pretending to be a big firm with two offices this is a one woman operation – Jacquline [sic] She is horrible to deal with, rude abrasive, unhelpful and bitter. Do not use this firm". (“the Third Review”).

(together “the Reviews”)

The authors of the First, Second and Third Reviews were respectively stated to be "Chris H", “John H” and “P R”.   The Claimant asserted that Chris H was a shortened form of the Defendant's name, and said in evidence that she had had no other client by that name. Similarly, the Claimant noted that John H was close to the Defendant's name, and the Claimant also gave evidence that she had had no other client with that name.  In relation to Third Review, the Claimant contended that PR were the initials of a lady named Presangi Ranaweera who, with the Defendant, had jointly instructed the Claimant in respect of a freehold purchase of the block of flats where they both lived.  The Claimant asked Ms Ranaweera whether she had posted the review and Ms Ranaweera had confirmed, by email, that she had not.  Accordingly, the Claimant believed that the Defendant had used Ms Ranaweera’s initials to deliberately conceal his own identity.

The Claimant also relied on a copy of a positive review of Trek Bicycles in Bath by the person using the initials “P R”.  In response to this review, the owner of Trek Bicycles in Bath posted a message that began, "Hello Chris, thank you for your 5 star review".  The Claimant claimed that this showed that "P R" was in fact the defendant, since he was called Chris.

The Claimant also relied on the timing of the First and Second Reviews.  The First Review had been posted two weeks after the SRA had rejected his complaint, and the Second Review appeared only two days after the Claimant had sent a Letter of Claim (which the Defendant denied receiving).

During a short half-day trial to determine whether the Defendant published or was otherwise liable for the Reviews, the Defendant denied on oath that he had posted any of the Reviews and said that he did not know who was responsible for them.  The Defendant maintained that he did not have a Gmail email address, which he claimed was necessary to post a review on a Google Business Profile (although this does not appear to be correct).  When asked about the positive review of the Trek Bicycle shop, the Defendant said he knew nothing about this and had never been to the shop.

Whilst giving his evidence, the Defendant referred to the fact that the Claimant had received negative reviews historically on the Yelp platform and had brought two previous claims against two other individuals also both named Christopher.  The Judge questioned the Claimant about these claims and she said that one was proceeding to trial and that the other one had been struck out on procedural grounds.

Judgment

In a commendably pithy judgment, Deputy Master Marzec accepted that whilst it was “not unreasonable” for the Claimant to suspect that the Defendant was responsible for the First and Second Reviews posted by “Chris H” and “John H”, the other evidence relied on by the Claimant did not take her case on publication much further.  Balanced against this was the Defendant’s own sworn evidence that he did not play any role in the publication of the Reviews and did not know who was responsible.   Deputy Master Marzec accepted that the Defendant’s evidence as being truthful and, consequently, held that the Claimant had not proven her case that he was liable for any of the Reviews.  The claims were accordingly dismissed.

Comment

Notwithstanding Deputy Master Marzec’s decision, there will be occasions where it is entirely legitimate for a Court to hold a defendant liable for publication based solely on an inferential case.   Indeed, this happened in Applause Store Productions Ltd. & Anor v Raphael [2008] EWHC 1781 (QB), even though the defendant in that case had denied responsibility on oath.   However, the facts relied on by the Claimant to invite the Court to draw an appropriate inference must be sufficiently compelling.  If they are not – and the defendant maintains that they are not responsible for publication – the Claimant will need to consider how to procure the necessary evidence which could potentially be achieved, as Deputy Master Marzec noted in this case, through an application for Norwich Pharmacal relief or a third-party disclosure order.  An alternative is to consider a claim against Google (or the relevant platform) as the 'intermediary defences' under section 5 and 10 of the Defamation Act 2013 may not apply where there are difficulties identifying the author of a review.