Tag Archives: defamation

KwikChex – Taking On TripAdvisor in the Courts?

TripAdvisor Group Action

If you get mailings from TripAdvisor, you may recall a recent email campaign from TripAdvisor with the subject line “Don’t go there. Hotel Horror Stories!”

The email singled out a dozen hotels and linked to a dreadful  review on the TripAdvisor site for each of them.

This went too far, according to Chris Emmins, co-founder of the UK-based reputation management site KwikChex.

Emmins points out that while many of the hotels had other negative reviews on TripAdvisor, some of them actually were recommended by a majority of reviewers.  By advising people not to go there, it is possible that TripAdvisor has opened the way to a legal case for defamation, despite the extremely protective American law that it has hidden behind up until now. Basically, under the USA 1996 Communications Decency Act, online publishers like TripAdvisor are held to be not responsible for any third party content they publish – including defamatory reviews and lies.

Because of this broad protection given to website publishers in the USA, there is little hoteliers have been able to do in the face of downright lies in TripAdvisor reviews.  Freedom of speech must be upheld, but it comes with responsibilities – freedom of speech does not mean we should accept lies.

“Online, Congress has given a special, very broad safe harbor to folks like TripAdvisor, and that has repeatedly been upheld by the courts,” said Jack Lerner, a professor at the University of Southern California Law School who specialises in Internet law. “The idea is, otherwise it would be too risky to be the service provider.”

Personally, I find the law in America is crazy for protecting online publishers from any responsibility for the content of third party reviews. If the publisher has been told that the content on their site is false and/or defamatory and the publisher refuses to retract the offending article or review, then they, as well as the author,  should from that point on be held responsible for the content.   That’s plain common sense and fair play.  But the law is clearly another matter!

In the case of the “Hotel Horrors” email, Lerner said any legal case in the USA would depend on “original content” having been created by TripAdvisor, as well as whether the stories were true.

“It’s a fine line that Congress has drawn,” Lerner said.  “They have given a lot of protection to these websites so they can operate freely and not have to be looking over their shoulder the entire time. That’s a tough sell to people who are getting defamed out there.”

KwikChex Chris Emmins said of the email “It’s come from TripAdvisor and not their members.  How could they do this and hide behind the phrase ‘user-generated content’?”

KwikChex has been examining this and taking legal advice – and is now launching a group action to press for changes to be made and specific damage to be addressed.  The following extract from the KwikChex site explains what they are doing:

The Action

The action includes:

  • Insistence on the removal of serious allegations that are unverified and for which there is no evidence, or for which there is evidence that the comments are entirely false. These include. Food poisoning; Accusations of criminal acts; including theft, assault and racism; Misleading and malicious descriptions of the property.
  • Compensation for businesses that have been singled out in TripAdvisor marketing activities, such as email and ‘reports’ that are misleading and substantially unrepresentative of the overall reputation of the property / business.
  • Correction of rankings in cases where the information used to produce a ranking is incorrect, out of date or provably false.

In addition, group members will lobby for the following changes to be made:

  • In these cases, they are not genuinely representative and have no meaningful value to consumers – but instead mislead and unfairly damage reputations. The management response facility provided is inadequate and does not correct the rankings.
  • Automatic deletion of all reviews over 2 years old.
  • Deletion of reviews referring to old criticism that have long been addressed and resolved (i.e., through refurbishment).
  • More accurate description of the reliability of reviews – qualify that individual reviews are usually anonymous and unverified and may not be from genuine customers. Desist using key phrases in this regard, such as ‘From A Trusted TripAdvsior Member’ and ‘Reviews You Can Trust’
  • Improve filtering systems to screen out words such as ‘poisoning’ ‘theft’ and vulgar expletives.
  • Cease the use of emails and online lists, using phrases such as ‘Hotel Horror Stories – Don’t Go There’ and ‘The Best and Worst Revealed’
  • An improved response system for owners and managers, enabling them to respond in greater detail

The Case Against TripAdvisor

  • TripAdvisor claims that they are not responsible for user generated content – but claims ownership of all posts.
  • TripAdvisor has taken user generated content and used it for commercial purposes, including misleading and damaging statements.
  • The TripAdvisor ratings system is flawed and inconsistent and distorts reputation.
  • TripAdvisor has failed to take appropriate action when offered evidence of falsehoods – thus removing their blanket disclaimer defence.
  • TripAdvisor is not consistently abiding by its stated policies.

Many specific cases have been prepared, and particular instances of serious, unproven allegations and misleading information generated by TripAdvisor have been identified and if necessary will be used in a legal challenge.

If your business has been the subject of the serious, unverified allegations or proven falsehoods as detailed above, you can join the group action for removal of the offending posts.  Joining the group action is not free – it is £35 – but how much is your online reputation worth?

KwikChex IS NOT JUST ABOUT AVOIDING NEGATIVE PUBLICITY.  Its main business is what it calls its ‘Promote & Protect’ service.  According to KwikChex “This service focuses on the positive by promoting reputable businesses very effectively – and provides not just participation in the current action against TA, but also robust defences against all manner of online defamation.” http://www.kwikchex.com

And no, I’m not on commission!