TripAdvisor didn't defame hotel by putting it on 'top 10 dirtiest' list
Unverified user review ranking: It's a diss, but it's not defamatory – judge
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Website operators that base their rankings of goods or services on the "unverified" views of online users cannot be sued for defamation, a US judge has said.
US district court judge Thomas Phillips said that although such systems may contain errors and not provide for good evaluation, they could not be labelled as defamatory.
The judge was ruling in a case involving travel review website TripAdvisor. The website had been sued by hotel owner Kenneth Seaton, who had claimed that TripAdvisor had "damaged and destroyed" the "excellent reputation, goodwill, confidence, and business advantage" of his Grand Resort Hotel and Convention Center in Tennessee when it had listed the building on its list of the top 10 "dirtiest" hotels.
TripAdvisor published an annual list of the "dirtiest" hotels based "solely" on the reviews published by users of its website, the judge said. This ranking system, though it makes for imperfect "evaluation", is not defamatory, the judge ruled (PDF).
"A reasonable person would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact; the reasonable person, in other words, knows the difference between a statement that is 'inherently subjective' and one that is 'objectively verifiable'," Judge Philips said. "It does not appear to the Court that a reasonable person could believe that TripAdvisor’s article reflected anything more than the opinions of TripAdvisor’s millions of online users."
"[Seaton] has failed to plead any facts that would lead this Court to find that TripAdvisor made a statement of fact, or a statement of opinion that it intended readers to believe was based on facts. Finally, though TripAdvisor’s method of arriving at its conclusions, unverified online user reviews, is a poor evaluative metric, it is not a system sufficiently erroneous so as to be labelled 'defamatory' under the legal meaning of the term," he added.
Under Tennessee state law, those claiming to have been defamed must show that statements have been published by those who know that the information is false and defamatory, or that it has been published "with reckless disregard for the truth", or that it was published with "negligence" because the publishers failed to "ascertain the truth of the statement".
In addition the state's law requires those allegedly defamed to show the "publicity" of the statement, that the information places them in a "false light" and is "highly offensive to a reasonable person" and that it was made "with the knowledge that the statement was false or with recklessness as to the falsity of the statement."
The judge said that Seaton had failed to "proffer enough facts to state a claim to relief that is plausible on its face", rejecting the proprietor's bid for compensation and damages from TripAdvisor totalling $10m. He described TripAdvisor's dirtiest hotel list as "clearly unverifiable rhethorical hyperbole".
"It is true that [TripAdvisor] published an article with a numerical ranking, and that [TripAdvisor] suggests reasons to support its opinions, including that '87 per cent of those who reviewed [Grand Resort] recommended against staying there,' but neither the fact that [TripAdvisor] numbers its opinions one through ten, nor that it supports its opinions with data, converts its opinions to objective statements of fact," the judge said.
"Any reasonable person can distinguish opinions based on reasons from facts based on reasons - just because TripAdvisor states its reasons for including Grand Resort on its list does not make the assertion one of objective fact," he added.
Judge Philips noted the findings of the UK's advertising watchdog in his ruling. Earlier this year the Advertising Standards Authority (ASA) banned TripAdvisor from claiming or implying that the reviews posted on its website come from genuine travellers or are honest, real or trusted. It made such a ruling after determining that TripAdvisor did not verify whether user reviews were genuine.
The judge said it was "irrelevant" whether user reviews were real or not for the purposes of evaluating whether the review site had defamed Seaton and his hotel.
"While the ASA prohibited TripAdvisor from claiming that all of its reviews were trustworthy, its study only affirms TripAdvisor’s assertion that it is clear from their website that the reviews are just that: users’ opinions," he said. "Whether or not the reviews are from genuine travellers is irrelevant to the question of whether TripAdvisor insinuated that its '2011 Dirtiest Hotels' list was based on anything other than opinion evidence."
Under the UK's Consumer Protection from Unfair Trading Regulations, pretending to be a consumer and giving yourself a positive review is 'an unfair commercial practice'. This is a criminal offence and business proprietors are potentially liable for an unlimited fine and a prison sentence of two years.
The practice, known as 'astroturfing', as it fakes grass-roots support for a product or service, is also contrary to the UK advertising rules. Astroturfing breaches the rules as the marketing is not fair, legal, decent, honest and truthful – the key principles of the self-regulatory CAP Code.
Copyright © 2012, Out-Law.com
Out-Law.com is part of international law firm Pinsent Masons.
COMMENTS
Re: @dotavid - hmm
Or people get different experiences, have different expectations and have their own opinions? Or that hotels learn from bad feedback and improve themselves? Or that staff and hotel-quality change over time?
A hotel I stayed in recently was given only two stars, and had reviews saying that the rooms were small and grotty and the staff belligerent. There was more than one "bad" review, and no good ones at all. But the key thing was that the guy in charge replied to them all, even if it was just a "Sorry you were disappointed" response.
I booked it, because it was a last-minute weekend getaway on the Bank Holiday and all I wanted was a room near a friend's house and it was THE last room in the whole damn county, virtually, and it turned out to be a wonderful place with huge, clean rooms, and the guy who ran it was the most lovely and friendly guy ever.
Either a) someone makes up reviews and puts them on the website or b) someone had a different guy, stayed there under a different ownership, has never really stayed in a "grotty" hotel in their life, or was just plain annoyed at something and vented their anger in the form of a vastly exaggerated review.
So much so that I went back on the site and put my own review up. So you now have several entirely opposing reviews. And in the past, I've posted devastating rundowns of problems I've had on the comments sections of hotels / B&B's that had perfect 5-star ratings. Because *I* didn't get a good service from them.
Same thing happens on eBay and Amazon, no doubt, and just about any site that allows ratings. Hell, at my favourite gastro-pub, I often see "complaints" inside the pub from people that think a 3-course meal should arrive within seconds, that the seats outside are near a road (you mean that road you just drove down to get to that pub in the first place? Shocking that!) or that because the guy in charge didn't give them free snacks while they waited 5-10 mins for their starters (on a table of 16!), they nearly started a fight.
Some people are morons and have stupid expectations and don't bother to check things. Hell, I've seen people complain on hotel websites that they "weren't allowed to smoke in the rooms" (which is illegal now!). So polar-opposite reviews do not a conspiracy make. It just means that someone had a bad experience, in their opinion, and someone else didn't, in *their* opinion.
The trick is: Ignore all ratings, stars, and everything else. See what the hoteliers responses are, and if the response is unreasonable, consider just what the stated problem was (and compare to other reviewers). A one-off "there was putrefied flesh dripping from the ceiling" actually means very little unless the hotelier ignores it, or someone else had the same experience.
And, at the end of the day, some poor sod will be the one underneath the bathroom when it leaks and have a soaked luggage while everyone else in the hotel stayed perfectly happily.
It's not about finding a hotel that doesn't have a single reported problem. You will never, ever, ever, ever do that. It's about finding a hotel where, when something goes wrong, they handle it correctly. If I *report* to you that the carpet was filthy or the room smelled or the bathroom only actually had three walls now, I expect you to do something about it. It doesn't really matter how it got like that (it's a public building and the people servicing it are human), what matters is your response to me reporting the problem. And if I don't report the problem until I've gone, how can the hotelier ever do anything about it?
Re: TripAdvisor need to get their house in order
Its not just the fake posts made by the hotels to keep an eye on.
Its the people who give bad ratings for no reason.
There was a UK documentary on a few months back about Trip Advisor and some of the worst offenders. Once such chap marked the hotel down if he didn't get fresh bedding every night. His excuse to the camera was he had a skin condition that requires new bedding every night. Did he tell the hotel? "No" he replied "they should have asked me".
People like that have closed businesses from their unnecessary bad reviews.
Re: hmm
When it comes to TripAdvisor I've found that generally the reviews are quite useful, if you take the time to read between the lines. Rather than go by the headline score, if you read some of the comments you might not be as concerned about some of the "issues" raised as the reviewer might have been.
Personally haven't seen any obvious astroturfing/shill posts, and generally my experience of hotels has pretty much matched up with the TripAdvisor comments - so I still think the site is quite useful. Certainly it's much better than picking a hotel was without it...
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