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05th December 2014

Leaving a Bad Review: Don’t Trip Up

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Before the advent of the internet, hotel guests could comment on their stay in a visitors’ book which had limited readership, and a hotel proprietor could simply tear out the page if a comment was unflattering. Nowadays, hotel guests can leave reviews electronically through a number of mediums, reaching a far wider readership, and creating a permanent footprint (subject to Take Down procedures).

Some unscrupulous hotel guests have been known to make a complaint simply to extract a refund or discount on their stay. Now we have seen that hoteliers are striking back, and fining guests for leaving anything other than a positive review. Tony and Jan Jenkinson were recently fined £100 by a Blackpool hotel for leaving an unsavoury review on TripAdvisor, following their stay.

Describing the hotel as a “filthy, dirty rotten stinking hovel”, it was clear that the Jenkinsons did not enjoy their time there. But should this warrant a £100 fine? The terms and conditions provided to the Jenkinsons stated that, for every bad review, the group organiser may be fined up to £100. In a consumer contract, such a term is highly likely to be unfair, under the Unfair Terms in Consumer Contracts Regulations 1999. This is currently being investigated by Blackpool Trading Standards.

In the meantime, it has been reported that the hotel has withdrawn this clause from its terms and conditions. This should be welcomed; it is clearly inappropriate to impose a fine for every unflattering review, especially those which are justified, without even consulting the author first. How though can hoteliers protect their reputation in the face of unfair or unscrupulous reviews?

The terms and conditions for the TripAdvisor site state that, by using the site, you expressly agree not to post any message that is, amongst other things, defamatory. However, TripAdvisor themselves will not police the site. They do not edit or control any message posted, unless a complaint is made through their Notice and Take Down procedure. Instead of levying fines on unsuspecting guests, use of the Notice and Take Down procedure is likely to be a far more practical option.

If you believe that a review is defamatory, in that it is likely to cause serious harm to your reputation, TripAdvisor provide a pro forma Notice which must be completed and submitted. This does require detailed information as to the words complained of, and the reason that they are defamatory. In particular, you must state why the words complained of are untrue. Perhaps the biggest obstacle for those faced with a bad review is that, if the statement is substantially true, the reviewer may defend an action for defamation. English law remains committed to the principle that you cannot seek recovery for damage to a reputation that you should not possess in the first place.

For a defamation claim to succeed there is also a certain threshold of seriousness which must be reached. Publication of a review on TripAdvisor, which has now been re-printed in the national newspapers, may well cause serious damage to the Blackpool hotelier’s reputation. However, how much damage is done by an off-hand comment that a viewer makes to a small group? In each case, it is a matter of degree.

The surprise that Mr and Mrs Jenkinson received when they checked their credit card bill has brought to light the lengths that some may go to protect themselves from bad reviews. It is likely that Trading Standards will be as unimpressed with the fine as the Jenkinsons were, and deem it an unfair practice. However, this does not give reviewers carte blanche to be as outspoken as they wish: one always needs to be careful not to stray into the realms of making a defamatory statement.

Hannah Postle deals with a range of defamation matters for both claimants and defendants, and has provided assistance on numerous occasions in completing Take Down notices. For further information contact Hannah Postle on 01223 461155 or click here to email Hannah.

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