BW Legal Services Ltd v Trustpilot A/S
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Tipples DBE |
| Judgment Date | 24 January 2023 |
| Neutral Citation | [2023] EWHC 6 (KB) |
| Docket Number | Case No: QB-2021-000573 |
| Court | King's Bench Division |
[2023] EWHC 6 (KB)
THE HONOURABLE Mrs Justice Tipples DBE
Case No: QB-2021-000573
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Desmond Browne CBE KC & Ben Gallop (instructed by BW Legal Services Ltd) for the Claimant
Anthony Hudson KC & Tim James-Matthews (instructed by Trustpilot Legal) for the Defendant
Hearing dates: 16 th & 17 th May 2022
Approved Judgment
This judgment was handed down remotely at 10.00am on Tuesday 24 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This is a libel action in relation to twenty reviews about the Claimant published by the Defendant on its website www.uk.trustpilot.com (“ the Trustpilot Website”) between 21 February 2020 and 21 January 2021. I shall refer to the Claimant in this judgment as “the Claimant” or “BW Legal”.
The Claimant describes itself as a specialist debt recovery law firm regulated by the Solicitors Regulation Authority and the Financial Conduct Authority. It says that it provides debt recovery services in sectors including financial services, private parking, energy and “general business to business and business to customer commercial debt recovery”.
The Defendant is a Danish company which owns and operates the Trustpilot Website, which provides a facility for users to post “reviews” of businesses which are then published by the Defendant.
The amended claim form is dated 23 September 2021 and the Claimant seeks damages, an injunction and an order under section 12 of the Defamation Act 2013. The Claimant maintains that the reviews make serious defamatory allegations against it, which include allegations of fraud and harassment.
On 18 February 2022 Nicklin J made an order for the trial of the following preliminary issues, namely:
a. the natural and ordinary meaning of each of the Reviews 1–20 identified in the Amended Particulars of Claim (“ statements complained of”); and
b. in respect of the statements complained of: (i) whether the meaning found is defamatory at common law; (ii) whether it made a statement of fact or was or included an expression of opinion; and (iii) insofar as it contained an expression of opinion, whether, in general or specific terms, the basis of the opinion was indicated.
On 4 March 2022 the Defendant served notice of its case on meaning.
The trial of the preliminary issues took place on 16 and 17 May 2022.
This judgment concerns that trial and only relates to the meaning of the reviews. The Defendant has not yet been required to file a defence and so no substantive defences have been raised. The court is not, at this stage, adjudicating on any issue concerning any of the reviews, other than meaning. Specifically, the court is not determining whether allegations made in the reviews about the Claimant (or anyone else) are true.
I read the reviews in advance of the hearing. I did so knowing the identity of the parties to the claim, but I did not know anything else about the claim. I therefore knew that the Claimant was complaining, but I did not know what it was complaining about. Further, I read the reviews without any reference to the parties' rival contentions or submissions on meaning. This was to capture my initial reaction as a reader and which is, of course, the accepted general practice in a trial of this nature.
The Claimant was represented by Mr Desmond Browne KC and Mr Ben Gallop. The Defendant was represented by Mr Anthony Hudson KC and Mr Tim James-Matthews.
THE TRUSTPILOT WEBSITE
The Defendant invited the Court to read the reviews as they appeared on the ‘live’ profile of the Claimant's website and, at the date of the hearing, the reviews appeared between pages 13 to 17 of the reviews posted to the Claimant's profile.
The Defendant also provided a detailed description of the Trustpilot Website in its skeleton argument, and there is no real issue between the parties in relation to this description. The Trustpilot Website is an online platform for consumer reviews. It is an open platform, and available for anyone to read and write reviews, reflecting their individual experience of the Claimant. No payment is required to do so. It is common ground that the reviews are based on people's own experience of the Claimant: what has happened to them, and what they know about the Claimant.
The Trustpilot Website enables consumers to rate online businesses (between one star and five stars), and to provide comment upon their experience of a business. Each business on the Trustpilot Website is allocated a “TrustScore”, being an aggregate of all of the reviews published on that business' Trustpilot profile page. An individual wishing to read the reviews of a particular business does so via the Trustpilot “profile” for that business. The Defendant says that the 20 reviews reflect only a fraction of the reviews published in respect of the Claimant's profile on the Trustpilot Website.
The Defendant maintains that the key features of a business profile may be broken down into three sections (from the top to the bottom of the page). First, the top of the profile page comprises basic details about the business, being: (a) the business name; (b) a hyperlink to the business' website; (c) the total number of reviews posted to the Trustpilot Website in respect of that business; and (d) the business' TrustScore.
Second, the profile includes a graphical representation of the reviews of the business, showing the percentage of reviews for each of the five star ratings. The star ratings are given adjectival descriptors: (a) Bad; (b) Poor; (c) Average; (d) Great; and (e) Excellent. Third, the reviews of the business are presented in reverse chronological order:
a. For each review, the information provided includes: (i) the username and profile photo (if applicable) of the reviewer; (ii) the number of reviews which that reviewer has posted to the Trustpilot Website; (iii) the reviewer's location; (iv) the star rating given by that reviewer; (v) the date the review was posted; (vi) a headline for the review; and (v) the text of the review itself. That information is all supplied by the reviewer.
b. There are also three buttons which appear below each review, being: (i) ‘Useful’ (equivalent to a ‘Like’ button on Facebook or Twitter); (ii) Share; and (iii) A flag icon, allowing users to ‘flag’ a concern with the review.
c. Only 20 reviews are displayed on any one page. Therefore, there is a function to click through multiple ‘pages’ of the reviews posted for that business (at the foot of each page).
The Claimant maintains that, overall, the Defendant is presenting information to users on the Trustpilot Website as a trusted source of information in relation to those companies or organisations that it profiles and that is endorsed by the use of the word “Trust” in the Defendant's name.
RELEVANT LEGAL PRINCIPLES & THE PARTIES' SUBMISSIONS
The relevant legal principles were, in large part, not in dispute. However, the following points arising out of them were in issue, namely:
a. the identification of the admissible context in determining the natural and ordinary meaning of each of the statements complained of on the Trustpilot Website;
b. how an online review on the Trustpilot Website would be interpreted by a user of the internet, keeping in mind the way such an online review is made or read;
c. the relevance (if any) of the one star rating in each review immediately before the statements complained of; and
d. whether the number of statements complained of are capable of being defamatory of the Claimant at common law.
The determination of meaning
The court's task is to determine the single natural and ordinary meaning of the words complained of in each review, and whether that meaning is factual or opinion. The essential question is how the words would strike the hypothetical reasonable reader. There is no dispute between the parties that the relevant principles are well established and are summarised in Koutsogiannis v The Random House Group Limited [2020] 4 WLR 24, Nicklin J at [11]–[17], as approved by the Court of Appeal in Millett v Corbyn [2021] EMLR 19.
There was also no dispute between the parties that the hypothetical reasonable reader is likely to be a person with some interest in the Claimant's business and who has looked for information about the Claimant on the internet. An internet search, for example through Google, will take that person to the Claimant's profile on the Trustpilot Website. The reasonable reader will be a typical reader of the Trustpilot Website who will appreciate that each review is posted by a separate individual reviewer, based on that individual's experience of interacting with the Claimant. It is not possible to tell how many reviews a reasonable reader will read on the Trustpilot Website, the order in which they will do so, or whether they will look at the information on the first page (with information about trust scores, rating or percentage of bad reviews).
The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available: Koutsogiannis at principle (iii). Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task: Koutsogiannis at principle (iv).
The context in which the...
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