USA Review Sites Immune to Libel Claims?

Can Online Review Sites Claim Immunity in Libel Cases?  Possibly – or MAYBE NOT …

Further to what I wrote about the libel case being brought against a TripAdvisor reviewer, I’ve been looking into the legal position for review sites as the publishers of possibly libellous content.

From what I’ve read here:

citmedialaw.org/legal-guide/immunity-online-…

and here:

…typepad.com/digital_millennium_copyri/2010/…

Section 230 of the Communications Decency Act appears to protect TripAdvisor and other review sites from claims in the USA, granting them immunity as online publishers of material created by third parties (i.e. reviews and forum posts).  Presumably that immunity does not extend to other jurisdictions e.g. Europe.

Even in the USA, the issue of immunity for the ICS (Interactive Computer Service, e.g. TripAdvisor, Yelp) when the reviewer is anonymous is a controversial one, since that leaves no course for redress if the complainant cannot identify the perpetrator of the libel.  I don’t think that liability in those circumstances has been tested in court – let me know if it has.

However, as the writer of the alleged libel in this recent case (Jonathan Nicholls) has been identified by the claimant, then TA would seem to be in the clear if Section 230 immunity applies.

EXCEPT: I have been told that once TA or any other online review site has been advised of the libellous nature of a review, the Section 230 defence is invalidated unless it removes the review from its site.  If it leaves the disputed review in place then it becomes liable to the libel claim.  I don’t have any case or court rulings to quote on this, but it seems reasonable and I’ll carry on looking.

As a side issue, the guy who’s being sued has asked TripAdvisor to remove his libel claim review.  I wonder, will TA help their reviewer out?  The claimant says she’ll drop the case if they do, but the review was still there when I last looked.

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12 responses to “USA Review Sites Immune to Libel Claims?

  1. I’m currently trying to get a libellous review taken down for a client. It’s just some nutcase with a grudge saying some really disgusting things.

    • I wish you every luck. The owner procedure for challenging reviews is challenging in it’s own right – how an owner is supposed to give a proper rebuttal in 200 characters or less, without being allowed to produce any evidence, is beyond me. TripAdvisor’s stance is that if a review gets through their automated checking procedures and is within their guidelines then it stands, whether the owner (or anyone else) says it is false or not. If they don’t do anything about it 2 weeks after being notified of the fake review, do keep me informed.

  2. Tripadvisor admits being able to monitor private messages, from the owners forum: “As Country_Wife pointed out we do reserve the right to read PMs, and we have to be able to do so in order to investigate complaints of inappropriate use of the private messaging system.”

    Now, considering how honest and decent Tripadvisor is, do you think they don’t routinely monitor them whenever they want to?

    I know they do from past experience. Another hotel owner I was conversing with on the site was banned after pming me with some juicy gossip.

  3. richard mcevoy

    Yes they do and I know my client has also had their access blocked for sending a private message to PDXNoah (a Destination Expert on the site) seeking advice on how to get a defamatory review removed; obviously the DE contacted TA, and the access was blocked. So the only reason for blocking the access was sending a private message – no other activity on the account so this is an infringement of human rights – another reason TA will have a lot of questions to answer!

    • Whilst I wholly condemn the banning of a member on the basis of asking a DE for advice, to be fair in this particular case it doesn’t show TA monitors PMs. PDXNoah does not work for TA. I presume he did get permission from the person who sent him the Private Message, or permission was implicit in the question asked, to pass the content of the PM on to TripAdvisor. Otherwise, revealing the content of DMs to others is grossly bad form.

  4. richard mcevoy

    I believe that they do monitor messages as when I sent a message then I got an email that I had a private message from basse cour but when I tried to log to pick it up my account had been disabled and that is the only activity that I had done so it is obvious but it will also form a basis for the case that I am working on – they have posted a contradiction to a review but refused to remove it despite having received CCTV footage that the review could not be true, the contradiction now deems them liable, email me if you want more details

  5. richard mcevoy

    Basse Cour – I sent you a private message on the Owners Forum on Friday and you replied, however I could not pick it up as TA have now blocked my access!!

    • No problem – I did receive a message at that time and tried to re-contact the sender, but found the sender’s account had been deleted. Thanks for letting me know the source.

      I do hope that TripAdvisor do not monitor private messages between members on their site. That is definitely a no-no.

      • Tripadvisor are known to monitor private messages, yes. I know from experience.

      • I’ve never heard of a forum that monitors members’ private messages. It goes against normal forum rules and etiquette. I’ll ask and see what they say.

      • I have been warned previously by TA staff over what I have sent as a PM, such as links to to this website (and others). They definitely do read PMs, albeit maybe not all of them.

      • Steve and Imao

        In response to my specific question on this on the Owners Forum (this is the thread that IMAO refers to) a TA staff member has confirmed that they can indeed read PMs.

        So you could say they are not so much “Private” as “Direct” Messages.

        He also says it is not their practice to read PMs unless they believe the person is in breach of forum rules – though why they should need to look at PMs to do this is not clear (unless the person receiving the PM complains about it).

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