A legal response to negative online reviews

Guest Blog – Michelle Goddard – Muffling the consumer voice

Michelle GoddardComparison websites are a useful choice tool for improving consumers’ ability to make informed choices in the complex maze of the legal services market. It’s clear that allowing online reviews of legal services on these types of platforms is helpful, especially if the feedback is curated by the website provider to ensure fairness to both lawyer and consumer (and minimise reputational harm from fake reviews). Ultimately the system needs to allow consumers to fairly share both their positive and negative experiences, but I’m concerned that the legal techniques that some lawyers now seem to be using, by increasingly threatening legal action for defamation in response to negative reviews, are likely to muffle the already muted consumer voice.

The Defamation Act 2013 came into force in January 2014 and was introduced to give better protection to those who express their opinions and to update, codify and give statutory force to existing law. Persons have to show they have suffered or are likely to suffer serious harm due to a defamatory statement. The framework also includes a new process of direct dispute resolution with the person who posted the tatement, aimed at those who believe they have been defamed online. The Defamation (Operators of Websites) Regulations 2013 came into force at the same time as the Defamation Act.

As lawyers use the threat of defamation actions to ensure that negative online feedback is removed, the power imbalance inherent in the consumer/lawyer relationship, makes the effect of this threat even more pronounced than in other markets. The threshold of serious harm required in the Act means that many of the claims by lawyers are likely to be intimidatory tactics designed primarily to scare consumers into taking their reviews down. In reality the claims would not reach the threshold, but as the threat comes from a lawyer the consumer simply removes or never posts the feedback.

Although consumers may not always be able to judge the technical quality of work, they are quite able to judge whether or not they have received a good service and they often comment on aspects such as whether they have been kept updated or had to chase progress. This provides useful feedback for other potential users and timely feedback to lawyers (both when they have provided a good service and when areas need improvement).

It’s unfortunate, and somewhat ironic, that the recent Defamation Act, intended to shift the balance between free speech and the right to reputation towards freedom of expression is now being used to the opposite effect. The odds are already stacked against consumers complaining about or providing feedback to their lawyers. Our research shows not only that consumers are reluctant to complain about their lawyer – our 2014 Tracker Survey shows 44% of dissatisfied consumers do nothing – but also that they are intimidated by lawyers, reluctant to complain, uncertain about challenging a lawyer and often try to take a ‘softer’ approach first. Experience in other markets such as Trip Advisor reveals that consumers post negative reviews more infrequently with the majority normally overwhelmingly positive, an experience reflected in legal services.

It can’t be right that lawyers can intimidate consumers by using their position and greater knowledge of the law to stop genuine reviews. But what can be done? I think that effective steps can be taken by lawyers, website operators and regulators to shift the balance back.

Lawyers need to recognise the value of consumer feedback by accepting the reality of negative reviews and using these as part of the process of continuous improvement of their practice. Comparison websites should confidently push back against unreasonable and unfounded threats from lawyers. Honest feedback can be encouraged with safeguards that ensure only users of the service can leave comments and that providers can always publish rebuttals. Websites can also consistently indicate where feedback has been retracted by users, which may demonstrate to consumers which lawyers are more likely to use these threats, allowing them to make own decision on whether that is the type of lawyer they would like to use. Finally, regulators can start to address poor practices, developing guidance on how lawyers should (or more to the point should not) be using the Defamation Act, highlighting the need for complaints, including ‘softer’ style complaints on customer service issues, to be dealt with at the first tier by the lawyer or law firm.

Good, professional, responsive service speaks for itself across all markets. We need to encourage consumer use of fair and credible comparison websites. Reliance by lawyers on threats of defamatory action, against website operators or users for negative online reviews must not be allowed to stifle the consumer voice.