A growing risk for dental services?

Jennifer Rhind looks at the problem of online defamation.

Running a successful practice relies on good communication, not only with patients in the chair but when marketing the services or treatments available, in the hope of attracting new clients.

The first thing most prospective new patients will do when wanting to learn more about a dentist or practice is search online to read the Google or Trustpilot reviews left by other patients.

Patients consider these reviews a valuable source of information, shaping their perception about a business before they even cross the threshold – if indeed they ever do, should too many poor reviews surface. High review ratings will help the good practices stand out from their competition.

And, of course, poor reviews are not always what they seem. Bad ones can go beyond the reasonable opinion of the author and cross a line into potential defamatory statements that can have serious consequences for the business at the heart of the review, tweet, post or comment.

Just because a patient feels they can write with impunity, and say anything they want about the service or treatment received, it does not mean a business has to accept the reputational damage when it feels there is little or no substance to the claims.

Businesses learning to fight back
The story of a law firm’s previous client having to pay libel damages for a negative Trustpilot review hit the headlines recently, and showed that businesses can fight back when they believe a review has crossed the line from a bad opinion into potentially defamatory statements.

The law in relation to defamation is contained within the Defamation Act 2013 and for a statement to be defamatory, the publication of the statement must have caused, or be likely to cause, serious harm to reputation.

If it is a business that suspects its reputation has been defamed, it will need to show that it has caused or is likely to cause the business to suffer serious financial loss, in order to be regarded as ‘serious harm’.

Whilst a practice manager having to deal with bad online reviews and damaging comments on social media can be stressful and time consuming, just because the comments are unpleasant, mean-spirited or personal in nature, it does not necessarily mean they are defamatory.

The public’s desire to share reviews, and the growing importance placed on them by consumers researching a business, means there is a growing risk of online defamation, but that does not mean it should go unchallenged.

Reacting in an appropriate manner
The pandemic has thrown dental services into turmoil, with some claiming it has been pushed to crisis point with thousands of patients unable to get an NHS appointment and fewer than half of NHS dentists providing routine check-ups. This is a febrile atmosphere in which to expect even-handed, considered comments from patients who may be angry and feel let-down by the first dentist they eventually see.

Many people believe they can express any opinions they want about a business and in fact, one of the defences to a claim in defamation is honest opinion. However, anyone trying to use this defence would need to establish that the words complained of as being defamatory, were in fact a statement of opinion which indicated as such and which an honest person could have held, based on facts that existed at the time the statement was published. If the statement is deemed to be a statement of fact, this defence would be unsuccessful. There is a very fine line between statement of fact and statement of opinion.

When reviewing online comments, you should always consider the meaning of the words carefully, and not just in their natural and ordinary meaning as words can be defamatory through innuendo or implication.

Whilst the author of an opinion might not consider their words to be defamatory, there are various factors to consider, such as whether the author has over-elaborated the position and what the ordinary reasonable reader would consider a statement to mean.

Further, as a general rule, an individual will not escape liability just by claiming they are simply repeating something someone else told them, unless they can prove the subject matter of the comment is true.

If you have any concerns or suspect a review contains exaggerated opinions, or ones that cannot be justified and you believe the comments have been made with the sole intention of causing your business serious harm, seek legal advice.