Think an online review crosses the line? With the law favoring websites, challenging it wont be easy.

September 14th, 2010 by Mariah


Think an online review crosses the line? With the law favoring websites, challenging it wont be easy.

In today’s online-obsessed culture, every guest is a critic and every hotel faces a bad review from time to time. Even the famed Four Seasons Hotel George V Paris does not have a perfect score on TripAdvisor.


But a recent email campaign from TripAdvisor went too far, according to Chris Emmins, co-founder of the UK-based reputation management site KiwkChex. The email, with the subject line “Don’t go there. Hotel Horror Stories!” singled out a dozen hotels and linked to a terrible review for each of them.


At best, it’s terrible public relations for the hotels. At worst, Emmins contends, it breaks the law. While many of the hotels had additional negative reviews on TripAdvisor, some of them actually were recommended by a majority of reviewers.


“It’s come from TripAdvisor and not their members,” he said of the e-mail piece. “How could they do this and hide behind the phrase ‘user-generated content’?”


In the U.S., many frustrated hoteliers have read bad reviews they are convinced came from competing hotels, disgruntled ex-employees or guests who are being unreasonable. Managers sometimes have the ability to reply to bad reviews, but can find that’s not enough to salvage their reputations.


Because of broad protections given to publishers of websites in the 1996 Communications Decency Act, there is little hoteliers can do, even in the face of defamation.


“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 specializes in Internet law. “The idea is, otherwise it would be too risky to be the service provider.”


In the case of the “Hotel Horrors” email, Lerner said the legality would depend on how much original content TripAdvisor created, as well as whether the stories were true. He said the law would not protect sites that edit the substance of a user’s comment or that induce the content.


“It’s a fine line that Congress has drawn,” Lerner said. They have given a lot of protections 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.”


TripAdvisor spokesman Kevin Carter declined to comment on the matter or to speak more broadly about how the site monitors user comments. Instead, he linked to information about the site’s practices of using a team of moderators to examine questionable reviews and an automated system that flags questionable content. It also said that TripAdvisor relies on its users to police the site themselves.


Bill Hart, an attorney with the Manhattan firm Proskauer who specializes in technology issues, said situations similar to the “Hotel Horror” email could be in a “gray area” of the law. In general, sites cannot go beyond publishing user statements without giving up their immunity, he said. If they make conclusions from the reviews, it could be problematic.


Hoteliers do have the option of taking action against the person who posted the objectionable content, Hart said, but typically sites will not disclose the identity of users without a lawsuit or subpoena. Even if a hotelier sues a site to compel it to disclose a user’s identity, the site may not have required that person to register, or the user may have given a bogus name or email address.


Hart said another risk is that a lawsuit could bring even more attention to the negative comments.



Emmins said he has not found TripAdvisor to be responsive when his company contacted it on behalf of hospitality and tourism clients seeking to clean up their online reputation. When KwikChex brought concerns over reviews to Google Maps, for instance, Emmins said the company reviewed the evidence and removed the offending material.



“TripAdvisor for some reason has gone down the route of using the reviews in their own marketing materials and embarking on a remarkably intransigent policy,” he said. “That’s why they have been singled out.”



KwikChex’s goals are to have TripAdvisor remove reviews that are more than two years old, that advise people to visit a specific competing hotel instead, or that contain insults without a constructive review (one-word posts that simply say “Crap,” for instance).



Emmins also objected to the site describing anonymous reviewers as “trusted”, since there is no authentication system to make sure reviewers are actual customers.



As a test, Emmins said KwikChex examined 100 reviews that mentioned food poisoning and cross-checked with local health authority records and with management at the particular hotel and restaurants. It did not find any official complaints.



He acknowledged that not everyone would file a complaint but felt the numbers told a story. Without verification, anonymous bad reviews raise the obvious question: Is the reviewer actually a customer?



“For a small restaurant with very few reviews,” he said, “that would be one of the easiest ways if you’re a competitor or disgruntled ex-employee to sabotage a business, given the power of TripAdvisor within the industry.”



U.S. law may provide relief when hoteliers have conclusive evidence of an inaccuracy or defamation. When they put a review site on notice of potential defamation with evidence, the site is obligated to investigate. But without conclusive evidence, a review site does not have to remove offending information.



“It wouldn’t be a good idea for TripAdvisor to flat out ignore these [complaints], but at the same time the law really favors the service provider here,” Lerner said. “Congress did that very deliberately because they felt that these organizations should not be held liable for all the stuff that their users do. In many cases, that’s difficult for the people being talked about to accept. Someone is saying something false about you. You can go after that individual or get the site to respond, but getting the site on the hook for defamation is much more difficult.”


Lerner said there is very little chance of the law changing to protect businesses – even as the power of review sites over consumer decisions grows.




Emmins said his company would continue to challenge what it considers to be defamatory reviews.


“There is nothing wrong with customer feedback,” he said. “It just needs to be genuine, honest and fair. It certainly needs to be without interference and manipulation from the publisher. It’s time for TripAdvisor to admit their failings, compensate businesses that have been particularly wronged, and correct it so it can be a truly trusted system.”


Although hotels may find little help under the law, Michael Feldman, an attorney at Proskauer who also teaches at the the NYU Tisch Center for Hospitality, Tourism, and Sports Business, said they have their own resources to draw on.


“Where they get their comfort is their brands supporting and reinforcing their brands,” he said. “You can’t stop people from sniping at you.”



BY : Beth Kormanik