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UK Defamation Bill and Anonymous Reviews

UK Draft Defamation Bill and Anonymous Reviews

Earlier this year Parliament appointed a Joint Select Committee to consult and report on its draft Defamation Bill; the Committee recently published its report and it contains recommendations that could have a major impact on anonymous defamatory reviews, requiring website owners to remove such reviews on receipt of a complaint.


The Bill and Internet Defamation

The original draft Bill seeks to rebalance the law in defamation cases between the right of freedom of expression and the right to protect reputation.

However, the Joint Select Committee believes that it does not go far enough in addressing specific issues concerning online content, particularly anonymous reviews.

The Joint Select Committee Draft Defamation Bill Report


Key Points

The committee proposes a series of reforms aimed at ensuring that disputes are generally resolved rapidly by mediation or arbitration, rather than via the courts.

An essential step in encouraging early resolution of disputes is the abolition of jury trials in defamation actions, in all but exceptional cases. Judges will then be required to take key decisions affecting the outcome of the case at an early stage, before massive legal costs are incurred.

The committee proposes to ensure that trivial cases are weeded out at an early stage by introducing a stricter test for determining whether a case is serious enough to go to court.

The Committee recommends that the Government takes action by:

  • Ensuring that people who are defamed online, whether or not they know the identity of the author, have a quick and inexpensive way to protect their reputation, in line with our core principles of reducing costs and improving accessibility;
  • Reducing the pressure on hosts and service providers to take down material whenever it is challenged as being defamatory, in line with our core principle of protecting freedom of speech; and
  • Encouraging site owners to moderate content that is written by its users, in line with our core principle that freedom of speech should be exercised with due regard to the protection of reputation.

In its detailed report the Committee recommends that if the author of a defamatory statement is identifiable then a complainant may take action against the author in order to pursue a legal remedy for the harm that they have suffered.  The process for bringing a complaint will also be simplified.  If the author is unidentifiable, a complaint will place a requirement on the ISP or host to remove the statement, unless the author identifies himself (in which case the aforementioned process applies), or the ISP or host considers the statement to be in the public interest (whereby they have the right to apply to court for exemption from a take-down order).

Excerpt from the report, downloadable in full at http://www.justice.gov.uk/downloads/consultations/draft-defamation-bill-consultation.pdf


101. We propose a new notice and take-down procedure, as indicated in paragraph 93, designed to provide everyone with easy access to the rapid resolution of disputes about online material. It will also help promote a culture which downgrades the credibility of anonymous online material, as discussed below.

102. We are concerned to address some of the problems facing innocent victims of defamatory material on the internet. In particular, a defamatory allegation can spread around the world far more quickly than the victim can react. Posts and blogs are also often written anonymously by users who adopt a generic username and/or email address, or make use of encryption software to mask their identity. Anonymity may encourage free speech but it also discourages responsibility, as people feel free to make abusive or untrue comments without fear of any comeback. We heard a mixed range of views about the feasibility of identifying users by seeking a court order against the host or internet service provider and then investigating the person’s “electronic fingerprint” to reveal who and where they are.[165] It is clear that even where this process leads to the defamer’s identity being known, it is not quick, cheap, or guaranteed in its outcome.

103. The challenges facing regulation of the internet contribute to what some people have described as a new “Wild West”, in which law enforcement is failing to keep pace with technology. Issues of this kind will not be solved overnight. There is, and will be, cultural change as we adapt to the use of new communication technologies. The law needs to respond to this. The precise direction of this social change is unpredictable but we believe it is possible, and desirable, to influence its development, in part through legislative reform. Specifically we expect, and wish to promote, a cultural shift towards a general recognition that unidentified postings are not to be treated as true, reliable or trustworthy. The desired outcome to be achieved—albeit not immediately—should be that they are ignored or not regarded as credible unless the author is willing to justify or defend what they have written by disclosing his or her identity.[166]

Identifiable material

104. Contributions published on the internet can be divided into those that are identifiable, in terms of authorship, and those that are unidentified, as described above. In respect of identified contributions, we recommend the introduction of a regime based upon the following key provisions:

a)  Where a complaint is received about allegedly defamatory material that is written by an identifiable author, the host or service provider must publish promptly a notice of complaint alongside that material. If the host or provider does not do so, it can only rely on the standard defences available to a primary publisher, if sued for defamation.[167] The notice reduces the sting of the alleged libel but protects free speech by not requiring the host or service provider to remove what has been said; and

b)  If the complainant wishes, the complainant may apply to a court for a take-down order.[168] The host or service provider should inform the author about the application and both sides should be able to submit brief paper-based submissions. A judge will then read the submissions and make a decision promptly.[169] Any order for take-down must then be implemented by the host or service provider immediately, or they risk facing a defamation claim as the publisher of the relevant statement. The timescale would be short and the costs for the complainant would be modest.

Unidentified material

105. In order to promote the cultural change we have outlined above, we recommend that any material written by an unidentified person should be taken down by the host or service provider upon receipt of complaint, unless the author promptly responds positively to a request to identify themselves, in which case a notice of complaint should be attached. If the internet service provider believes that there are significant reasons of public interest that justify publishing the unidentified material—for example, if a whistle-blower is the source—it should have the right to apply to a judge for an exemption from the take-down procedure and secure a “leave-up” order.[170] We do not believe that the host or service provider should be liable for anonymous material provided it has complied with the above requirements. If a person who has been defamed can go on to establish the identity of the author (with the help of the courts, online host or service providers) then they may take action against the author in order to pursue a legal remedy for the harm that they have suffered. Where this is not possible, we believe that the law should provide that ordinarily internet material from unidentified sources may not be relied upon by a defendant or claimant in defamation proceedings. Any host or service provider who refuses to take-down anonymous material should be treated as its publisher and face the risk of libel proceedings, subject to the standard defences and our proposals relating to leave up orders. It is for the Government to make clear in the Bill any exceptional circumstances in which unidentified material should have evidential value for the purposes of defamation proceedings. We do not pretend that we are advancing an ideal solution, still less an instant one, but promoting cultural change is an achievable goal that will minimise the damage inflicted by the mischievous and the malicious. Our aspiration is that, over time, people will pay less attention to and take less notice of material which is anonymous.

106. This two-stage procedure should apply equally to online sites that are moderated and those that are not. This is necessary to correct the existing disincentive to online hosts to moderate sites.[171] To achieve this, the Government will need to reform the Defamation Act 1996 to the effect that secondary publishers—such as internet hosts or service providers—shall not be treated as becoming liable for allegedly defamatory statements solely by virtue of having moderated the material or the site more generally. Liability should be determined by the way in which the host or service provider responds to a request for a defamation notice or a take-down order.


Restaurant Review Dilemma

How far should a reviewer go in punishing a restaurant for below-par service?

Southfork Kitchen is a sustainable seafood restaurant in Bridgehampton, NY.

Mr Cohen went to said fish restaurant and found it packed at holiday time so no table was available as he had not reserved.  He declined an offer to eat at he bar but opted to wait for a table to come free – which took an hour.  By this time the restaurant had run out of some dishes.  His displeasure was aggravated when he found the fish restaurant did not serve red meat. An offer by the owner of a sampler menu for free for all his party was declined.

As was his right, he panned the restaurant on Yelp, TripAdvisor, 27East.com and who knows where else.

We attempted to eat at the restaurant on 12/30/10. We waited a total of two hours and were finally told that they were out of nearly every entree and “would we consider sampling what they had left?” When they couldn’t confirm how long it would take to get “tastings,” we left NEVER TO RETURN TO THIS HORRIBLE PLACE — And the owner came up to us to say it was a “bad night” He was arrogant and didn’t apologize or offer us the opportunity to return comped or discounted. AVOID THIS RESTAURANT.” –Alex C.

How should the owner reply to these reviews? You can tell him at


GUESTSCAN – “unwanted guest” database or unwanted “guest database”?

GUESTSCAN  – “unwanted guest” database or unwanted “guest database”?

A British entrepreneur has set up a website which he says is aimed at protecting small hotels from “nightmare guests“.

Guestscan.co.uk has been developed over the last 2 years by Neil Campbell, but has only been operating for about a week.

Mr Campbell said it had taken almost two years to ensure the website complied with the Data Protection Act and any potential litigation that could ensue.

His idea is that owners share information about dodgy guests via the Guestscan website.  According to the Guestscan website nobody can view the database, but members are able to check if a specific person is on the list. Where a person appears on the database full details will be supplied to the member. It’s then up to the member to decide whether or not to take the booking.

There are several categories of behaviour that Guestscan says will qualify for a guest to be reported to the database; these specifically include:

  • Non-payment
  • Damage to property
  • Abusive behaviour towards staff
  • Abusive behaviour towards other guests
  • Excessive noise
  • Extra unauthorised guests
  • Theft
  • Fraud

Guestscan claims that every report of  guest misbehaviour is checked by them before being added to the database.

To comply with the Data Protection Act, guests must be informed if they are reported to the database.  If the member does not do this  themselves then Guestscan.inc will do so.  Part of the membership conditions includes a condition that members must indemnify Guestscan for the consequences of malicious reporting.

On the front page of the Guestscan website are what appear to be endorsements David Weston of the Bed & Breakfast Association, and Martin Sachs of the English Association of Self Catering Operators.

Putting aside what the service costs, is THERE REALLY ANY NEED FOR SOMETHING LIKE THIS?

Travelocity relaunches IgoUgo

Travelocity relaunches IgoUgo

Travelocity is relaunching IgoUgo, its travel advertising and review site.

The site has a new logo and interface with interlinks to Twitter and Facebook.

New Look for IgoUgo

For individual destinations users can access an “I’ve been here” feature, which serves up profiles and travel tips from some of IgoUgo’s 540,000 members.  However, bear in mind that the number of members and reviews on IgoUgo  is a lot lower than TripAdvisor and probably even less reliable.

The “I’ve been here” feature is a copycat of other social-travel collaboration attempts, such as TripAdvisor Trip Friends and TravelPost Connections, where the user can look for trip recommendations from people in their social networks.  The snag is, this is a waste of time unless your friends compulsively post on these sites about places they’ve been.  Most don’t – so the user would be better off asking them directly on Facebook instead.

As IgoUgo tests the new site in anticipation of a Sept. 27 “official” launch, it also takes a pot at other review sites such as TripAdvisor, though it doesn’t actually name names.

“While other sites seem to focus on where not to go, IgoUgo is all about advice from others who have had great trips, rather than people lodging complaints,” the IgoUgo spokesman says.

The new site is undoubtedly better looking, clean and devoid of the ghastly pop-ups that litter TripAdvisor like a rash, but as far as reviews and advice go it doesn’t sound any better – TripAdvisor, for all its faults, looks set to remain Number 1.

A Suggestion to Reduce Bogus Reviews

The Problem

One of the great unsolved problems with TripAdvisor and other anonymous review sites is that they are open to abuse by fake reviewers – people who have never visited the place they are reviewing.  The motives for this can be attention seeking, cybervandalism, a competitor trying to manipulate rankings, a grudge … Is your competitor up the road looking too good on TripAdvisor? No problem – get a few mates or employees to post damning reviews from home.

The damage done to a restaurant, hotel etc by malicious reviews can be considerable – not only commercially but also mentally and emotionally for the owner of a property attacked in this way.  That’s why the TripAdvisor Owners Forum contains topics like these:

Owners Object to Fake Reviews

Owners Object to Fake Reviews

The Owner Position

For large hotels with hundreds of reviews the odd fake review may not matter in the overall scheme of things, but for smaller concerns with a small number of reviews, one malicious review can make a considerable difference – and it’s also a lot more personal.

The majority of owners do not object to reasonable and fair reviews.  But they rightly object to the fake and malicious ratings which pepper anonymous review sites.

Failure to Validate Reviews

TripAdvisor and other anonymous review sites all have a multitude of disclaimers, denying any responsibility for what they publish and refusing to vouch for “their” reviews.  TripAdvisor says it has checks in place to reduce the risk of fakery, but in reality fake reviews still get through. The current validation systems used by TripAdvisor appear to be little more than an automated system which checks IP addresses and the reviewer’s history on the site via cookies (primarily intended to stop reviews being posted from a hotel’s own internet connection), plus occasionally asking the reviewer by email to click a link in the email to confirm their review is genuine (which probably also involves an IP address check).  There’s nothing there that can’t be easily dodged by a fake reviewer.

Does it have to be like that?  Is it really impossible to introduce any sort of validation procedure which proves that the reviewer has stayed at the hotel in question?

In a Perfect World

In a perfect world, both guest and owner would have to acknowledge the booking in advance, as the successful holiday accommodation portal homelidays.com does for its reviews.  I believe that hotel.com, part of the same group as TripAdvisor, also has these proper checks.  In that case the owner may not like what is published, but there is no doubt that the visit actually happened.

However, I can’t see any way that TA is going to agree to that.  So here’s another suggestion.  It may be utter rubbish – let me know!

A Suggestion to Reduce Bogus Reviews

TripAdvisor (I’m going to say TripAdvisor as it’s the biggest, but it applies equally to Igougo, Trivago etc.) provides a unique property code to each registered owner, and known only to the owner.  In a prominent place on each property page and on the review page it is made clear that for a review to be classed as “Validated” a guest must ask the owner for this code – this could be done at any time, either before or after they place their review, or even before they have arrived.  If a review is posted without this code, it is classed as “Unvalidated”.  The review site could use other terms, of course.

A Validated review would be harder for an owner to refute, though of course they could still post a management response, and so would work for TA by reducing the number of unfounded claims by owners against “fake” reviews.

One drawback I can see would be that if all reviews required the registered owner code then owners could stop all/some reviews being posted; plus listed properties with no claimed owner (and there are plenty of them) could not have reviews posted.

So as a compromise TripAdvisor could continue to allow people to post unvalidated reviews, but have 2 categories of review relating to validated and unvalidated stays, and clearly flagged as such on the property review pages.

Far from ideal, I admit, but some sort of mutual validation would at least be a step in the right direction and might even give TripAdvisor reviews more credibility.

BHA Demands that Review Sites Play Fair

BHA to Take Hotel Review Sites to European Commission?

Bob Cotton

Earlier this month the British Hospitality Association announced that it was taking serious action against “anonymous reviews” and planning to present a case against TripAdvisor to the European Commission.

Bob Cotton, chief executive of the BHA, said that they were seeking to persuade the EU Commission to update the rules governing website reviews to ensure that they have been posted by genuine guests, and not by rivals or people out to cause mischief.

Hospitality industry leaders in Europe recently called for the rest of Europe to adopt the same levels of review authentication that are already in operation in Germany.

Mr Cotton said: “Websites have a responsibility that the person has actually stayed at the hotel or dined at the restaurant. I have been having discussions in Brussels on behalf of the industry so that some sort of common sense should prevail, as it does on sites such as eBay.” He added: “You can’t ban these on-line comments – that is like de-inventing the atomic bomb – and I am in favour of all these methods of modern communication. But we need a fair crack of the whip.”

He also said that he was aware of cases where owners had “smelt a rat”.

“It might be that someone has picked up some business from a competitor and the competitor wasn’t very happy and they put a whole series of comments saying how bad the visit was by the people who stayed at the hotel. It can really affect a business.”

Read more about Bob Cotton’s point of view on review sites on his BHA blog.

Ufi Ibrahim

Since then,  it has been announced that Bob Cotton will be succeeded by Ufi Ibrahim as Chief Executive of the British Hospitality Association.   Ms Ibrahim will succeed Bob Cotton on the 19 July 2010 and she joins the association from London-based World Travel & Tourism Council (WTTC).

The BHA on Twitter confirmed that Ms Ibrahim will be meeting shortly with TripAdvisor representatives.