Can I Be Sued For Posting A Bad Review On Marks Out Of Tenancy?
Can I Be Sued For Posting A Negative Review Of A Landlord On Marks Out Of Tenancy?
We always encourage both tenants and landlords to use Marks Out Of Tenancy because honest, informative feedback from and for customers in the Private Rental Sector can only improve renting for everyone.
However, there are limits to what can be posted in a review. Our Acceptable Use policy clearly lays out what you can and can’t say. In extreme cases people have been sued for defamation for online reviews, which we will cover below.
We understand there may be times when landlords disagree with reviews left on our platform, and in this article we’ve covered what happens next and how those disputes can be resolved for both landlords and tenants.
Below we’ll go into how tenants can protect themselves when writing a review, how landlords can respond to reviews they disagree with and we’ll also cover the basic points of defamation law. Please note, none of us here at Marks Out Of Tenancy are lawyers: you need a professional lawyer if you’re engaging in any legal action and the information below is publicly available and intended for illustrative purposes.
A guide for tenants
How to protect yourself
If you’re writing a review of a property and you’ve recently left on bad terms with the landlord it can be tempting to let them have it with both barrels, but this might not be a good idea. Not least because if a landlord can prove your words were defamatory you could wind up in court.
You will be protected in law if what you post is honest and based on a true account of your own personal experience.
You also can’t upload reviews that are offensive, abusive, indecent, pornographic, or infringes upon intellectual property, confidentiality or other proprietary rights, as per our Acceptable Use Policy.
You can post honestly held opinions anywhere online, including as part of a review here, as long as they pass the defamation test (see below).
A guide for landlords
What can you do if you disagree with a review?
If as a landlord or agency you find a review on our platform you don’t agree with, your first port of call should always be Marks Out Of Tenancy - attempts to contact users directly could constitute harassment and should be avoided.
There is a 'report abuse' flag on each review and every review response that links to an online form to file a complaint in respect of content which is abusive or you honestly consider defames you..
You can also formally notify us of any defamatory content or Intellectual Property Rights Infringement using the templates on our Complaints Procedure page.
How to open a landlord account to respond to a review
Landlords can respond to reviews on the site by opening a landlord account, as detailed here this lets you have your say and receive notifications as soon as you're reviewed.
We encourage landlords to make accounts and use our platform, we believe that honest online reviews help separate good landlords from bad and we encourage a healthy, active community of renters and landlords on our platform.
If all else fails…
If a landlord has engaged with our dispute process and still feels they have a legal case for defamation they may wish to take the matter to court. Defamation cases can be time consuming and costly undertakings. You should consider taking legal advice if you have any doubts as to whether the words you are unhappy with are in fact defamatory.
Below we will outline what constitutes defamation and how a defamation case proceeds through court.
What happens when someone sues for defamation?
You have legal protections when writing a review of a product or service online, otherwise everyone who posted a negative review on Tripadvisor or Amazon would find themselves in court.
You do have to stay within certain boundaries when talking about other people or organisations online. In this section we’ll look into the law surrounding what you can and can’t say.
You can get sued for saying negative things online about a person or company - this is called defamation.
Even if you say something in a private facebook group you can be accused of defamation.
What is defamation?
Defamation is a statement that causes harm to the character of the person or organisation it concerns.
If a company or person wants to sue for defamation they have to prove that the statement made has “seriously harmed” the claimant’s reputation.
The Defamation Act 2013 specified that harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause them serious financial loss.
You may have heard the terms libel and slander - these are both types of defamation: libel is written down or recorded and slander is a spoken statement.
What happens in a defamation court case?
The first thing a court has to do is establish whether what you have said is defamatory - does it meet the criteria for defamation set out in law?
They will hear arguments from both sides about what the person who wrote the comments meant to say when they wrote them, and what the effect was on the claimant.
Then, if the court finds that it was defamatory, there will be a full hearing to determine if the claimant is right or whether the person who made the comments is protected under the law.
Legal defences to defamation
There are several defences in law for defamation, people have a right to express their opinions without fear of legal action and that is protected under law as long as what they say meets a few criteria.
The first and most simple defence is that what you said is true.
For example if you leave a review saying your landlord used racist language to you in an email and stole your laptop, and then they sue your for defamation - if you can provide evidence to the court that these things really happened, for example an email from them where they use the language or admit stealing your property, then that would make your case very strong.
The second defence for defamation is if the statement is an honestly held opinion.
There are several parts to this defence. First it must have been flagged as an opinion - so you said something like “I think..” or “In my opinion…” in the statement.
Second you have to have “indicated, whether in general or specific terms, the basis of the opinion” according to the law - this means you have to say why you held that opinion.
And third, your opinion has to be based on facts. The law describes this as: “an honest person could have held the opinion on the basis of any fact which existed at the time.”
Note, this is an honestly held opinion, that means if the claimant can prove you did not honestly hold that opinion at the time, then this defence will fail.
For example, if you post a review saying: “I think Frank Sidebottom is an incredibly rude and lazy landlord because every time I messaged him asking to fix the hole in my roof he called me a plonker and refused to help.”
Frank the Landlord reads the review and decides to sue for defamation. First of all, Frank would need to prove that what you said was defamatory - that it had seriously harmed his reputation or it had caused or was likely to cause him serious financial loss.
If the court agrees that Frank has suffered serious harm to his reputation or finances as a result of the comment, then there will be a full defamation hearing to decide if the comment was defamatory.
If in this hearing you can provide solid evidence that your stated opinion (that Frank was rude and lazy) was based on facts - for example texts from Frank calling you a plonker and refusing to help - then there is a good chance things could go in your favour.