#TripAdvisor Liable under UK Law

TripAdvisor Liable under UK Law

Hotels, B&Bs and restaurants can now take legal action in the UK against review website TripAdvisor following a landmark victory over legal jurisdiction.
Following months of legal argument, TripAdvisor said on October 11th at Stornoway Sheriff Court that it was dropping its challenge to UK jurisdiction, conceding that it is subject to the laws of Scotland and can be taken to court in the UK.
The case was brought by a Scottish B&B owner who claimed that negative criticism posted about his business was false and should be removed by TripAdvisor.

TripAdvisor had previously denied it was subject to UK law and argued it could not be sued in Britain, saying that its headquarters are in Massachusetts and therefore outside the reach of the UK legal system.

However, the B&B owner’s lawyer argued that the “harmful event” took place in Uig, on Lewis, and thus the Stornoway court had jurisdiction. In addition, he pointed out TripAdvisor had a designated office at 7 Soho Square in London, which put “the defenders in the member state.”

However, this particular case may not make it to court as the Sheriff ruled it was too complex for the Sheriff court and would have to be transferred to a higher court.  This would expose the plaintiff to unlimited legal expenses.

The B&B owner pointed out to the sheriff that TripAdvisor had spent weeks trying to transfer the case to Massachusetts, and that its latest request to transfer to a higher court was a ruse to make it too expensive for him to pursue his case.  Sheriff Colin Scott Mackenzie said, “I do have sympathy for you” but added that the contract law involved might be too complex for his court.

Mr Gollin is now appealing to the Sheriff Principal over the decision, which could force him to drop the action due to the legal costs involved.  However, it does set a precedent for other owners to challenge TripAdvisor in court outside the USA.

About these ads

14 responses to “#TripAdvisor Liable under UK Law

  1. For the avoidance of doubt, there is no such thing as UK law.

    This case refers to Scotland, which is different from English law. Although both countries are part of the UK, the legal systems are very different, in terms of the legislation, the origins of the legislation, whether something is criminal or civil, and the penalties.

    This case is under Scots law and the same outcome may or may not be likely under English law.

    • The key issue at stake here is that TA have, until this case, maintained that they cannot be taken to court outside the USA; this is the first time TA have admitted that any legal jurisdiction other than the USA applies to their worldwide activities.
      Whether it is English or Scots law is a bit semantic in the circumstances, although the procedure may be different, citing different cases.
      Imho, the principles of contract law, and whether it is applicable, apply in both jurisdictions.
      My business is registered in England & Wales, and trading in Scotland . . .

      • You’re right of course, Steve, but I did make a “technical” error in referring to “UK Law”, to which I’m happy to hold up my hands. Pedantry apart.
        :)

  2. Sorry I don’t enough about the legalities involved, but it does seem fair to me if a business can ask to be removed from the site. I think Facebook had a similar problem as to whether someone could choose to delete their own profile.

  3. destination expert

    At the beginning of the year Tripadvisor told Destination experts that they would donate $250 each to one of several charities. http://www.tripadvisor.com/ShowTopic-g1-i12384-k5307340-A_Special_Announcement_for_DEs-Destination_Expert.html http://bit.ly/yM3vgA They haven’t followed through, and are not responding to repeated questions about it. A possible DE revolt in the works?

    • Hi – unfortunately, you have to be logged in as a Destination Expert in order to view the link you’ve posted so I can’t comment. Sorry. :(

    • destination expert

      “ A Special Announcement for DEs ”
      Apr 06, 2012, 10:51 AM

      Hi all,

      The wait is over! You’ll be receiving this PM in your inbox today, but I wanted to post it here as well, in case anybody has trouble accessing the link to the form.

      Best regards,

      TA_MikeW

      ———————————————-

      Dear Destination Experts,

      We can’t say this often enough — thank you for all that you do for the TripAdvisor Community. We know that our forums just wouldn’t be the same without you and all of your helpful contributions.

      In appreciation of your dedication to our travel community, TripAdvisor has allocated a large fund to be donated on your behalf to some internationally recognized and respected organizations that do great work for the benefit of people and destinations worldwide. You’ve volunteered so much of your time helping other travelers plan memorable and enjoyable trips to the destinations that you know and love, and we’re excited to be able to make a contribution to the betterment of those destinations through this effort. We’re pleased to announce that we’ll be making a donation of $250 (USD) on behalf of each and every Destination Expert. All you need to do is tell us where you’d like your donation to go. You may choose to allocate your donation among one or more of these organizations:

      – Doctors Without Borders: http://www.doctorswithoutborders.org

      – Save the Children: http://www.savethechildren.org

      – The Nature Conservancy: http://www.nature.org

      – Conservation International: http://www.conservation.org

      – FINCA: http://www.finca.org

      Please let us know your preference by completing this form before May 1. You will need to copy and paste this link into the address bar of your web browser:

      http://bit.ly/yM3vgA

      Thanks again for your continued dedication to the TripAdvisor Community!

      Best regards,

      The TripAdvisor Community Team

      P.S. If you encounter any problems accessing or completing the form above, please send an email to destinationexperts@tripadvisor.com for assistance.

      ———————————————-
      Reply

  4. Very good points raised there Steve. We never asked to be on that site, nor did we agree that TA could manage our on-line business reputation. This could turn into a real David and Goliath battle

  5. Like you, I wondered what on earth the TripAdvisor lawyer was talking about when he said “people” who used the site did so “at their own risk” – as you say, most owners are listed without their consent (the exception being those who pay for a listing to have their email and website displayed).

    I hadn’t thought about what sort of “contract” TripAdvisor might be arguing between this owner and TripAdvisor – thinking about it now, I don’t believe there can be one unless the owner has a paid listing. The B&B in question does not have a paid listing.

    In the Hebrides News yesterday it states:

    “If it goes ahead, the case will now pivot on the legal interpretation of TripAdvisor website’s terms and under the basis of the Unfair Contract Terms Act 1977.

    Mr Macdonald told Sheriff Mackenzie that complicated questions regarding contract law were too complex for the small clams procure.

    He said TripAdvisor intended people who registered with them would accept “certain terms and conditions.” ”

    http://www.hebrides-news.com/tripadvisor_hebrides_court_case_121012.html

    • Reading this all again, it is clear that the TA lawyer admits (or construes) there is a contractual relationship between B&B provider and TA (particularly when there is no advertising payment made, i.e. a ‘free listing’ as created by the independent, anonymous ‘TA member community’), otherwise they would not be able to request it goes to a higher court. I would suggest that the TA lawyer has compromised TA’s own defence by admitting to a contractual relationship. Of course, he was attempting to block a potentially successful claim by dragging it to a higher court where the claimant could lose his business if he fails, i.e. TA want to use their financial strength to crush (read divide and rule) any ‘dissent’, but in the process has opened TA to another, much more interesting line of claims.

      Thus, the action has moved to the small claims court, which is probably the best place, for the following reasons:
      1) We can all demonstrate loss linked to unfair reviews, thus can all make a claim (a small one that comes under the small claims court limit), and
      2) Case law now indicates that there is a contractual relationship (the only reason it was moved to a higher court) and therefore this means that we can all quote this case when bringing our own cases to a small claims court, and
      3) If the claim succeeds at the small claims court, then great, we can all repeat the process, locally, until TA get fed up with losing small claims, or
      4) If the claims do not succeed (as per the Lewis example) then TA will have to appoint lawyers all over the place just to defend TA in Small Claims Courts all over the land (read UK under Scottish or English law here, but there must be similar elsewhere, such as France). It will not take long before they will get fed up defending themselves, or
      5) If TA don’t bother to defend themselves, they will automatically lose.

      All the above can be achieved with a very limited cost to the aggrieved Accommodation owners, but at some considerable cost in terms of locally appointed lawyers and management time for TA. It would soon mount up if TA suddenly found they were defending a hundred or so cases nationwide; more if there are more disgruntled accommodation owners? . . .

      In conclusion,
      1) We can claim for loss in a small claims court where we have suffered loss due to unreasonable ‘reviews’ and
      2) We can file for unfair contractual terms if our businesses appear on any TA site without our permission . . .

    • Phil,
      The point here is that whilst you and I cannot see how there could be a contract in the ‘normal’ meaning of the word, TA are adamant that there is a contract (otherwise they would not be moving it to a higher court). TA are, therefore, acting as if there is a contract (or implied contract, if you prefer).
      The fact that most of us (those without a paid listing) have no way of escaping this ‘implied contract’ makes it unfair, so the UCT Act 1977 is the applicable law.
      As I said before, the TA lawyer has inadvertently opened a much bigger can than he could have possibly imagined, for the following reasons:

      1) In the converse, if the case is rejected from the higher court, it will be because the claim cannot be brought under the UCT Act 1977, and thus will put it back to the small claims court.

      2) If the higher court accepts the case, then it will look to see if the contract (implied to exist) is fair or unfair.
      If it is unfair (and a contract from which escape is not possible is, de facto, unfair) then the case is won.

      3)The only way TA can win this is to prove that contract terms are fair and that a 3rd party (not TA or their ‘member reviewer’) is implicated into a contract from which the 3rd party are unable to escape, without closing their business, and without their permission, agreement or signature which, I suggest, would prove to be a new chapter in the matter of case law as applied to fair or unfair contracts or, put another way, completely re-writing current case law.

      This is a key moment for all ‘review sites’ that do not have a direct contract with the businesses reviewed.

  6. A small victory, but just the first step on a long road. This case deserves support form an organisation well enough funded to bring the full weight of the law to bear upon TA.

    Beyond the clear outcome that TA have to answer to UK (Scottish or English) Law, there are 2 linked points this raises; the first is a nonsense statement from a TA representative, the second a fundamental change in the ‘relationship’ between TA and Accommodation providers.

    1) Disturbingly, Angus Macdonald, for TripAdvisor, told Sheriff Mackenzie that complicated questions regarding contract law were too complex for the small claims court, and he also argued that people who used the site did so “at their own risk”. One has to ask, which ‘people’ is he referring to? If it’s readers researching a holiday, then I agree, but this case is about the B&B Owner, who has no choice but to appear on TA, so whilst it may be at ‘his own risk’ that risk cannot be mitigated as he has no choice other than to appear on the TA site; ergo it is not ‘his risk’ but ‘his fate’ and to which he has no escape other than close his business.

    2) I am intrigued that the case was brought under Contract Law, establishing, I believe for the first time, that there is a contractual relationship between TA and the B&B Owner. For me, this is the big breakthrough. It follows, therefore, that the ‘contract’ would be unfair if it was not possible for one party to extricate themselves from said contract. It would be deemed an “unfair Contract’ if the only way out is to cease trading, or close a business. Establishing that the posting of a ‘review’ of a business by a third party on a site such as TA automatically establishes a contract between the Business and TA is the big breakthrough. For a Contract to be fair, both parties to that contract must agree terms. At no point does an accommodation provider have an opportunity to agree terms on TA.

    We should all file for ‘Unfair Contract’ if our business appears on TA without our agreement . . . any comments or takers?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s