Online complaints and defamation
Customer expectations and perceptions are critical to the service experience. When a customer’s expectations are not met, it means they may perceive the service encounter as poor, which results in dissatisfaction. Extreme dissatisfaction may result in emotions such as rage and anger. Rage can be seen as a range of emotions including fury, wrath, disgust, contempt and resentment. Milder forms include being upset, annoyed and agitated. In many cases, the anger is out of line with the magnitude of the service failure. But what do dissatisfied customers do?
Some do not exhibit any behaviour or complain about their treatment from an organisation. It has been suggested that up to 96% of dissatisfied customers do not complain to the organisation. These customers may exit the organisation or service provider, never to return. Others may even stay, specifically when there may be no other service providers in a specific area or of a specific product. Others do complain.
Customers who complain can exhibit various behaviours which include verbal (letters and emails) and non-verbal communication (punching) and other negative actions such as exiting or negative word-of-mouth. In an extreme form, it has been suggested that extreme emotions may lead customers to try and extract some type of revenge on the organisation.
Customers may take revenge on the service provider through the use of a third-party website, especially taking into consideration its accessible and anonymous character. Is this because customers do not understand the legal ramifications attached to the posting of the comment or that they know that it is difficult to succeed with a claim for defamation?
We need to examine the likelihood of a customer ending up in court for a comment posted under the current South African law, especially in the light of the fact that the right to freedom of speech is protected under our Constitution.
The principles of defamation
The general principles relating to defamation must also be applied to online defamation. In order to prove online defamation, a service provider or organisation will have to prove the following:
- The customer writing the comment must have a clear intention to harm the service provider by writing the comment. In many instances, the customers express anger after experiencing service failure and merely write the comment with the hope that somebody cares, or to vent or to warn other consumers. It is usually not their intention to damage the reputation of the service provider so much so that they go out of business. It will not be sufficient if a service provider could only prove that the customer should have reasonably foreseen that the comment would have caused irreparable damage to the service provider. In cases of defamation by the media, the plaintiff need only prove negligence on the part of the person making the defamatory statement. In order to establish negligence it must be proven that the customer could reasonably foresee that by posting the comment, that the service provider may suffer irreparable harm. The Internet also communicates to the masses and therefore it may be logical to replace the clear intention requirement with that of negligence;
- If a right-minded member of society reads the comment, he must think less of the service provider after reading the comment. The person reading the comment must be of a normal intelligence and not overly critical. For there to be defamation, we would have to believe that a negative comment posted about of a service provider is true; and
- Publication of the defamatory statement is required. It is presumed that any comment posted on a third party website is published as it is available for anybody to read. It will only be a matter of time before somebody ventures onto a third party website to read the comment. Search engines like Google makes it very easy for any customer to access all negative comments relating to a service provider with the click of a mouse.
There doesn’t appear to be any reported case in which a service provider successfully defended its reputation against the onslaught of online defamatory comments. This may be attributed to the fact that litigation is costly and does not do much to repair the damage done to the reputation of a service provider or that it is extremely difficult to prove that the customer had the clear intention to cause irreparable harm to the service provider.
Analysis
We analysed 29 complaints logged for a specific motor vehicle manufacturer on the Hellopeter.com website over the period from February to July 2009 to identify possible defamation. Only 5 complaints required detailed screening to determine if defamation was present. All 5 complaints contained elements of defamation, but in all 5 complaints, it was not possible to prove that the customer had a clear intention to cause irreparable harm to the motor vehicle manufacturer. However, if negligence replaced the clear intention test, all the complaints would have been defamatory.
Taking into consideration that almost 327 000 people visit a site like Hellopeter.com on a monthly basis it may be suggested that the legislature must develop the current South African law to provide a more cost effective and quicker legal remedy for service providers that fall victim to online defamation.
While we wait for the law to catch up with the developments in technology, the task of repairing the harm done to the reputation of a service provider will rest firmly on the shoulders of responsive marketers.
