TripAdvisor Reviewer Sued for Libel

Back in 2007, a certain Jonathan Nicholls stayed at a vacation centre called Gumbo Limbo, in Sarasota, Florida, USA.  He later posted a scathing review on TripAdvisor.

Libellous Review on TripAdvisor?

As you can see, his list of accusations included cockroaches, ants, dust, dirt, pubic hairs  and mould.  Certainly sounds like a “dump” as he describes it.

Yet here’s a snapshot what others say about Gumbo Limbo:

Hey! This Place is Great!

Just in case you can’t see, this shows there are 29 “excellent” reviews for the same place.  Rather hard to reconcile with Mr Nicholls’ “terrible” review.

Now Mr Nicholl’s anonymous review could end up costing him $15,000.  Three years on, the owner has succeeded in identifying this previously anonymous reviewer and is suing Nicholls for damages, saying his comments weren’t true and resulted in loss of business.

TripAdvisor is named as a co-defendant as they published the allegedly false review.  The libel writ was served last week.

Gumbo Limbo’s owner, Virginia Heidersberger, said “I didn’t even know about it, I learned when somebody told me there was a very bad review on TripAdvisor. I couldn’t believe my eyes.”

I thought I could post any old crap!

“Tripadvisor is an open forum for reviews, and that’s what I did,” said Nicholls, 29. “I feel like I’m being bullied for my opinion.”

Of course, Mr Nicholls and TripAdvisor have nothing to fear if his review was truthful.  If it was truthful then he should stand by what he said .  But that is a BIG IF.

Was he telling the truth? And if he wasn’t, should he and TripAdvisor be allowed to get away with spreading damaging, libellous mistruths? In libel cases it is for the defendant to prove they were telling the truth – that is reasonable, otherwise anyone would feel free to tell any lies they like as long as they thought they wouldn’t be caught out.

This could be an interesting test case, particularly regarding whether TripAdvisor shares responsibility as the publisher of the alleged lies and damages.

Tripadvisor representatives could not be reached for comment last Friday according to http://www.tennessean.com.

Tripadvisor takes an “interesting” position concerning the reviews it publishes.  It says on its website that it is not responsible for the content of reviews and that it does not verify their content.  Yet it also claims ownership of that same content.  A case of having your cake and eating it, if ever there was one.

Matt Zimmerman, senior staff attorney with the Electronic Frontier Foundation, a US group that acts for Internet civil liberties, said “One can be sued for making factually incorrect statements online. We certainly have seen more and more examples of business owners and others who are being criticized online suing when people give them negative reviews.”

The owner of the accommodation in question (Heidersberger) seems a very reasonable individual, and has said she will drop the libel suit if the TripAdvisor review is removed. “I want them to remove it, and I will walk away,” she said. “I do not want to have more damage that they can do to my place. I’m a forgiving person.”  That seems more than reasonable to me.  On Friday  the guy who posted the review (Nicholls) said he had also asked the website to take it down, but hasn’t heard back from TripAdvisor.

To date, TripAdvisor hasn’t removed the review (pictured at the top of the page).

Legally Speaking

In Europe

European Union Directive 2000/31/EC establishes a safe haven regime for hosting providers:

Article 14 establishes that hosting providers are not responsible for the content they host as long as they are not informed of its illegal character, and that they act promptly when informed of it.

In the USA

Protection for website publishers against claims for libel is stronger than in Europe.

Section 230 of the Communications Decency Act  protects 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).

Advertisements

25 responses to “TripAdvisor Reviewer Sued for Libel

  1. I abslutely agree with the above.I run a resort/apartment complex and have had my battles with T/A. The most recent being a foul, offensive and totally untruthful review posted by a “guest” who never stayed with us. He rented an apartment ( the cheap seats) with an outside R/E agent and obviously got what he paid for..a dump! Then he had the hide to blame us as management, we didn’t know him, didn’t know which apartment he booked, absolutely nothing about him or his private arrangements. But, T/A happily published his “review”. When I complained, to their credit they removed the review, only after i brought to thei attention the laws of defamation in this country ( Australia), that the publisher is equally as guilty as the originator of the defamatory comments.Whilst they invite management responses to negative reviews, what you are allowed to say under their guidelines is limited. A guest can call me what the hell they like. If I respond in a like manner..”Tut, tut, you’ve breached our guidelines…naughty boy!” I see in the UK T/A has been ruled against in a tribunal and they are no longer allowed to use the word “trust” in their advertising. “Reviews from people you can trust?” I don’t think so, “Trust me I’m a Doctor”

  2. Pingback: abouttripadvisor

  3. Given the autocratic way many hotel franchisees behave toward their PAYING “guests”, anonymous reviews are “guests” only recourse. Their parent corporations refuse to deal with any problems.

    I have absolutely no sympathy for hotel owners. I’ve taken too much crap from them over the years traveling for work, for no apparent reason, with absolutely no explanation. I know other people — mostly men — who have had the same experience. It’s hardly like I’m a demanding guest, since in most cases I spend the day at work and only watch TV with the sound muted before going to bed at night.

    If hotel owners don’t want bad reviews, they should keep up their hotels and treat their “guests” like human beings. They might be able to squelch us on the internet, but they can’t keep us from talking to family, friends, co-workers, and employers.

    • Bad hotels deserve bad reviews, but to be reasonable no-one should have to put up with fake or malicious reviews. Although most reviews are okay – both good and bad, everyone’s entitled to an opinion – the fakes and mischief-makers are a pain and take up time that could be better spent on genuine guests. Particularly so in the case of small inns, B&Bs and the like. You sound like an ideal guest, BTW 😉

  4. Pingback: Buckleup's Blog

  5. Pingback: Tripadvisor : guest's secret weapon to revenge - Hostel Management Forums

  6. I’ve had 2 bad reviews for our B&B. One was from someone that had never stayed with us (own admission) and an other from someone writing about an hotel in Bogata.
    It took MANY weeks of writing and begging to get Trip Adviser to react but they didn’t ever apologise.

  7. This is dizzying. I travel a great deal and often rely on tripadvisor reviews. I’m definetly going to look into this further.

    • Hi Ashley

      The majority of TA reviews are genuine – the problem is when you get a crackpot or malicious reviewer. That’s when the real problems start as any owner who has been in that situation will confirm.

      Phil

  8. richard mcevoy

    I was very careful about what I did on TA site as they follow your activity with cookies. I did not ask questions on the public forum: The DE (Noah) answered a question about TA being protected by the immunity clause on the owners forum and I PM’d and told her of the exception being that TA would be liable if they knew of the possible defamation or illegal content and refused to act.

    I have never posted on the public forum and the only other activity that I had, other than to monitor the site, was to PM this person and for that I was blocked.

    Now on a more interesting note for owners I have monitored the site for 8 months and in that time I have noticed reviews being removed or disappearing from listings that had taken out “business listings”; at least when the reviews disappeared, contact details for the establishment appeared – coincidence or what?

    Now, I earmarked one place and when 45 reviews disappeared over half of them were 1* and the rest 2* & 3*. I decided I would seek a reason for such a move and the reply from TA was that the establishment had re-branded. However, investigations have shown that no ownership change took place and no re-branding, the only change being the place took out a business listing. I am building a file of evidence against TA and have all documentation printed off – it is surprising what changes or disappears from the site!

    • If they really are removing sub-standard reviews for places that take out business listings that would be a huge scandal. I’d be amazed if they did such a thing.

      If what you say is correct then some sort of proof would be needed, ideally screenshots of review summaries before and after the business listing was taken out. But that would require some sort of clairvoyance!

      If you knew the names of the places concerned then you MIGHT be able to prove what you claim using the Wayback Machine.

      This is a fabulous tool that I have used myself for other reasons than this. If you’re not sure how it works read this: http://en.wikipedia.org/wiki/Wayback_Machine .

      Basically, it is an archive of previously cached web pages – if you input the URL of a page, you’ll be able to see a cache of what it looked like in the past. Provided that TA property review pages are cached it might give the proof you need. However, some sites block the Wayback machine so it’s not infallible.

  9. richard mcevoy

    It is my opinion that TripAdvisor are not immune to any reviews that they have been informed are defamatory or illegal, because even if posted in the US, these reviews also appear on the European sites of TripAdvisor (like .co.uk, .ie .fr .de etc etc.).

    This immunity is now no longer a cover for TripAdvisor, especially if they have been supplied with written or photographic evidence of a wrong-doing. The important thing for owners to do is submit by recorded post any evidence they may have, keep copies, and any damages will be from the date TripAdvisor were informed of libel or defamation – I private messaged the original owner who asked this question on the forum on Friday and now TripAdvisor have blocked my access to the owners reply – nice people!!

    They may write and publish what they wish, but if you try defend yourself you are automatically blocked!

    INCIDENTALLY: Owners are also entitled to A FAIR & HONEST ACCOUNT OF WHAT THEY BELIEVE IS THE CORRECT VERSION OF EVENTS otherwise they are being denied their “RIGHT OF REPLY”.

    • The blocking of Owners seems to be more widespread than just the odd person then. It also seems targetted specifically at those asking ‘awkward’ questions, being those questions TA neither want to hear nor want to either answer nor do anything about, for whatever reason. It really appears to be head in the sand stuff, but no doubt there is some commercial rationale somewhere…

      • I really don’t know, Steve. I mean, I ask awkward questions but I’ve not yet been banned! I doubt I’m flavour of the month, but I try to remain within forum rules when I post – which is no easy task given the restrictions on what you’re allowed to say!

        Does anyone know if there’s a stated procedure and policy stating under what circumstances they will delete accounts?

        Otherwise I will look eventually but I’m kind of busy!

      • Phil;
        TA worked out the connections (and they re-linked my new account to my original property), leaving me able to see the Owner’s Forum but still unable to PM or post or send any correspondence to TA in any way. I also then received the following wonderful email from a NoReply at TA, saying:
        Notice of forum guideline violation [ref:00D8LC7N.5008AdQYX:ref ]‏
        From: no-reply@salesforce.com on behalf of TripAdvisor Support (support@tripadvisor.com)
        You may not know this sender.Mark as safe|Mark as junk
        Sent: 24 May 2010 18:49:49
        To: my REAL name and original email address

        Steve, As you may have noticed our moderators disabled your TripAdvisor account due to persistent violations of the forums guidelines. It appears you have now created a new screen name and attempted owner registration for another property. Registering as an owner or representative of a property of which you are not an authorized representative is a very serious matter, and we will not tolerate such activity. If you wish to register your new account as the owner of your property, we welcome and encourage you to do so. If you have any questions please let us know
        TripAdvisor Owners Forum Team ref:00D8LC7N.5008AdQYX:ref

        TA have no idea what my relationship is with that property, so they assume the worst (after all, I am one of those terrible Owners, the scourge of tourists worldwide!).
        The most amusing part in all this is that I am offered the opportunity to ask any questions of TA, as above, but have absolutely no means of any, let alone any effective, means of communicating with TA as they have cut me off, barred me, disabled my account and finally send me (yet another) email from a NoReply address – as they do to everyone!
        I remain puzzled at the juxtaposition of registering an allegedly unconnected property (and doing nothing except registering) being a crime against TA, and posting worldwide on the internet, through the assistance of TA, an anonymous, malicious and false review about a business I have never been to being, apparently, OK with TA. The only reason TA knew about my other registration was because I used the same IP address. Where I have used other IP addresses on TA, they have (to this day) not a clue. Therefore, anyone can register as an owner, it is just you have to have an IP address that is both that of a ‘member’ and not one TA are not watching/monitoring. Of course this would be very different if TA opened ‘normal business communication channels’ with Owners whose property they wished to post reviews about on their site…

  10. richard mcevoy

    I refer to this extract from the Act>>>>

    European Union Directive 2000/31/EC establishes a safe haven regime for hosting providers:

    Article 14 establishes that hosting providers are not responsible for the content they host as long as they are not informed of its illegal character, and that they act promptly when informed of it.

    • That seems clear enough, that in Europe at least sites that publish third party reviews are not immune to allegations of libel. Many thanks for the additional information.

  11. It is interesting the link to this post stayed in the Tripadvisor forum….

    • It is a good sign indeed, Guido, suggesting a newfound willingness to listen to criticism – which is fitting as that’s their business! It also prompted me to write the subsequent post that maybe TA are starting to listen to owners.

  12. richard mc evoy

    The Act “Section 230 of the Communications Decency Act” which TA are claiming immunity will only protect TA if they are unaware of any non factual content in a review, otherwise once they are made aware and refuse to act accordingly by promptly making good the damage by removing the offending article, they become libel.

    • Thank you for that information Richard – a “Destination Expert” on the TripAdvisor owners Forum had said that TA was protected under that clause, but I had no idea whether that was the case or not.

      What you say would seem equitable to my way of thinking, but I can’t find the reference to itt on this site:
      Immunity for Online Publishers Under the Communications Decency Act

      This and related pages appear to make no mention of immunity ceasing once the website has been informed of the potential libel. Or at least I can’t find it. ???

      There is reference to something very similar under another page concerning “Retraction Laws“, but it seems to relate to the publisher’s own material, rather than material provided by a third party (like a reviewer).

      I remember now why I gave up studying law and switched to psychology!

  13. I agree with Phil.

  14. Anonymity is the problem. TA defence is that they provide a service for ‘members’, completely ignoring the fact that a ‘membership’ in the normal meaning of the word applies to identifiable persons. It is, thus, a poor defence imho.

  15. If it does remain, and the case does go to court with a positive outcome for the owner, then the floodgates really will open. Serve TripAdvisor right. I’ll certainly think about my one bad review from an ‘anonymous’ reviewer, though I know who he is.

    • Thanks for your feedback, Stu. The difficulty remains in identifying anonymous reviewers. Sometimes you can, sometimes you can’t. Which is all the more reason why TripAdvisor themselves should be held responsible. In my view, it’s outrageous that a business’s reputation can be damaged by an anonymous mischief-maker on a site that denies responsibility.

      Phil

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