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).
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).