Could I be sued for writing an online review?

As a user of social media I occasionally post candid and critical reviews of companies after I’ve had a bad experience with their product or service. Should I be worried about being sued for defamation?

Andrew Fremlin-Key, an associate in Withers’ media and reputation team, says this is certainly an important issue because a review can amount to a publication about a third party which can cause serious harm to their reputation and therefore be libellous, or, in other words, defamatory. But there are defences to a defamation claim — notably truth, honest opinion and public interest. 

There isn’t a core legal definition of defamation in English law. One frequently referred to by judges harks back to a case nearly 100 years ago, and asks whether the allegedly defamatory statement tends to lower the claimant in the “estimation of right-thinking members of society generally”.

The Defamation Act 2013 raised the bar for claimants bringing defamation claims — they are now required to prove serious harm to reputation (and, if the claimant is a company, it will need to demonstrate serious financial loss). This can be a difficult benchmark for claimant companies, but there have been a number of cases recently where they have done exactly that.

A case of a law firm suing a former client who posted a critical review on Trustpilot this year ended with that individual being ordered to pay £25,000 damages — albeit the successful law firm then suffered public criticism itself for bringing the claim to begin with,

In your reviews, therefore, you might want to consider the likely impact of your statements. You should also consider whether you can back them up in the event that a claim is brought against you. People often assume that they can hide behind a pseudonym. But anonymity is no protection.

If your statement can be shown to be true, regardless of the financial loss it might cause, it is unlikely to be found to be defamatory.

You may also be able to rely on the defence of “honest opinion”, provided you can show first that the statement was opinion; second, that it set out the basis for the opinion; and third, that an honest person could have held that opinion on the basis of facts that existed when the statement was published. 

Similarly, if the statement is in the public interest (for example, uncovering a false claim by a manufacturer) you may be able to rely on this defence.

However, even if you win, the court process can be stressful, expensive and time-consuming.

Finally, even if you avoid a legal tangle with the company you have criticised, you should be aware that defamatory comments often breach the terms of the many well-known review websites. Breaching the terms and conditions could mean that the comment is removed or, worse still, your profile is blocked.

It may not be rocket science, but it pays to be considered, accurate and truthful in what you post online, particularly where it involves commentary or criticism of third parties.

Can a client force me to be PAYE?

I’m a contractor and currently operate outside IR35, the rules for off-payroll workers, in the private sector. I was recently told by my client that I’ll need to work via an umbrella company or become an employee before IR35 reform is introduced on April 6. If I refuse, my contract will be cancelled. However, I’m reluctant to work PAYE given that I’m confident I provide a genuinely self-employed service and belong outside IR35. Is there anything I can do to change my client’s mind and is the approach taken by my client legal?

Seb Maley, chief executive of Qdos, which provides tax advice for companies, says while the approach taken by your client certainly isn’t representative of the entire private sector, it is, unfortunately, a decision that too many businesses are taking. It’s a needlessly risk-averse strategy given that IR35 reform can be managed, contrary to speculation and, sometimes, scaremongering.

In answer to your question regarding the legality of your client’s action, a business is within its rights to ask that all contractors work via umbrella companies or become fixed term or even permanent employees in response to IR35 reform. This is because the IR35 rules don’t apply to employees.

Insisting that genuine contractors become employees is a short-sighted workaround to the changes, which will probably see businesses lose highly skilled and flexible contractors like yourself, who want to continue working compliantly outside the IR35 legislation.

So how can you try to convince your client to rethink its umbrella-working only decision? A sensible place to start is by demonstrating to them that your contract belongs outside IR35. About 91 per cent of the contractors we assess via Qdos on behalf of businesses find their contracts belong outside IR35.

I’d also advise showing them examples of other companies — preferably their competitors — who are taking a pragmatic approach to the reform and will continue working with contractors outside IR35. These firms will not only keep hold of their contractor workforce but continue benefiting from the agility, not to mention cost effectiveness, offered by independent professionals.

Speaking with fellow contractors — those who feel the same way you do — and approaching the client together may prove useful too. There’s no doubt that multiple contractors will have a stronger voice, which could ultimately persuade a business to consider the risk they are taking by enforcing umbrella-only working.

If all of the above fails, attempting to renegotiate a rate rise to compensate for the extra tax you will pay or even considering offers elsewhere are alternative options. Given that thousands of businesses will continue to engage contractors outside IR35 after April 6, these opportunities will continue to exist.

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.

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