August 20, 2018

The claimant, Tereza Burki, sued the dating agency defendant, Seventy Thirty Ltd (70/30), for deceit and misrepresentation. In a separate action, 70/30 sued Ms Burki for libel and malicious falsehood in connection with two online reviews of its service that Ms Burki had posted. The two actions were tried together.

During April 2016, Ms Burki published a Google review of 70/30’s services. The review gave 70/30 one star only and stated: “A scam, no database, clients use to finance the lifestyle of founder, without consideration for results or even ambition to achieve such …”. Ms Burki also published a longer, but equally negative, review on Yelp.

His Honour Judge Richard Parkes found that the words complained of in both reviews were unarguably defamatory of 70/30 at common law because they would have substantially affected in an adverse manner the attitude of other people towards 70/30, or had a tendency to do so.

As for the question of serious harm under s 1 Defamation Act 2013, Ms Burki argued that the Google review should be read in the context of eight other reviews of the company that were more positive. She said that the principle in Associated Newspapers Ltd v Dingle [1964] AC 371, which is authority for the rule that other publications to the same effect as the words complained of are inadmissible, had no application where the other publications were not libels, but compliments or praise.

HHJ Parkes accepted that Dingle had no direct application to the admissibility of surrounding material that did not go to a claimant’s damaged reputation, but was not prepared to find that the sting of Ms Burki’s article was drawn by the reviews that surrounded it. It was the impact on readers of her words that the court had to consider, he said. Readers may have read her review alone, without considering the positive reviews. A group of reviews was not analogous to an article, or two linked articles in one newspaper, which must be taken as having been read as a whole. The position would be different if all the reviews could properly be treated as part of a single article, he said, but that was not the position here. In his view, the court’s focus when assessing serious harm, had to be on the words published, not on the impact of other material published by third parties.

Applying the principles set out in Lachaux v Independent Print Ltd [2018] QB 594 to the Google review, HHJ Parkes QC found that the words complained of conveyed a very serious defamatory meaning. They were available to be read for a period of over four months, and they would have been seen by an unquantifiable, but substantial number of readers who were interested enough in 70/30 to search for it on Google. The s1(1) threshold was therefore met.

HHJ Parkes QC also found that the Yelp review was likely to cause serious harm to 70/30’s reputation, and that the harm suffered by 70/30 was liable to cause it serious financial loss. However, he said, Ms Burki had established a defence of truth and honest opinion in respect of that review.

As for damages, Ms Burki again argued that, in mitigation, the Google review should be considered in the context of the other positive reviews.

If that argument was right, HHJ Parkes QC said, the damages that should be awarded to a claimant for the publication of a defamatory article would depend on the context in which that review appeared, even when the defendant had no control over that context. He was “very doubtful that this [could] be right”. In his view, it was “a very capricious determinant of the assessment of damages”, not least because the numbers and nature of the other reviews would change from time to time, thereby potentially changing the meaning that should be ascribed to the words complained of. Further, it was impossible to know how many readers might have focused on the one bad review to the exclusion of the others.

HHJ Parkes QC also made the point that if Google had been sued for publication of Ms Burki’s review, it could have relied on the context of favourable reviews as part of the overall publication for which it was responsible, because all the reviews could properly be treated as part of a single publication. Ms Burki could not, however, rely on surrounding reviews that she had not published as mitigating the damage caused by hers. The judge assessed the general damages payable to 70/30 at £5,000. (Tereza Burki v Seventy Thirty Ltd [2018] EWHC 2151 (QB) (15 August 2018) — to read the judgment in full, click here).