KwikChex Update – Defamation Actions
The last week has seen extensive press coverage of the actions by KwikChex.com against defamatory comments posted on TripAdvisor.
Some of the information received from applicants contained information of a serious nature that has required further investigation.
The next step is the submission to TripAdvisor of a list of ‘specimen cases’, of which some of the details are listed in this document. TripAdvisor will be asked to take remedial actions within 14 days and asked to enter into further discussions regarding improvements and safeguards.
The debate that has been created has raised several issues which we would like to clarify.
Why has TripAdvisor been singled out?
It is highly influential in terms of buying decisions by consumers and whilst many of the reviews on their site provide a good guide, there are several elements within the TripAdvisor operating procedures that are questionable. These include adding comments of their own in emails to their members and on their website about specific businesses that misrepresent the standards of those businesses and which unjustifiably damage their reputation. They also have refused to remove comments even when offered evidence that they are untruthful.
Is our action an attack on the freedom of speech?
No – KwikChex and all KwikChex members believe that fair criticism and honest opinion should be encouraged and remain protected by law. The targets of this action are provable, malicious lies or gross distortions of the facts.
Are the businesses that are taking part not just trying to hide poor standards?
No – almost without exception the participating businesses (KwikChex members) have a high rating even on TripAdvisor. Their sole motivation is to stop untruthful, malicious accusations which no individual or reputable business should be allowed to suffer. Examples are listed below in the further details of the submissions to TripAdvisor.
Is the action a ‘publicity stunt’?
No – numerous attempts to correct the distortions and defamatory comments using the procedures suggested by TripAdvisor have failed and individual actions are very costly for businesses that are claiming defamation, so a group action has in effect become a necessity.
What are the precise aims of the action?
To fairly defend businesses and their owners and employees against serious, false and unwarranted allegations and to improve the reliability of published consumer feedback.
Are TripAdvisor protected by law because they claim to only publish user generated content – i.e., the opinions of others?
If necessary, this will have to be tested – however, as previously mentioned, TripAdvisor have gone beyond user generated content in a variety of ways. Several legal experts in more than one country, including the USA, are of the opinion that directly influencing consumers by adding disparaging and out of context comments of their own, over-emphasising the reliability of unverified reviews and failing to respond to offers of evidence may make them liable.
TripAdvisor say that they enable businesses to respond to comments published on their website – is this not enough?
If it is a simple criticism of standards then this facility is probably all that is needed for a good business to respond. In many cases, reputable businesses freely admit errors and apologise. However, when there is gross distortion or serious allegations (for example criminality or personal injury) are made, then the business owners have a right to defend themselves, using all legal means.
Shouldn’t the actions be against the posters of the defamatory comments themselves?
As part of the action and on an ongoing basis, legal applications will be made to ascertain the identity of malicious posters. This aspect will if necessary be included in the current action and will become more frequently used. There are several cases that have now featured such actions and as has been proven already, even when comments are made anonymously, it is often possible to find the identity of the perpetrators.
TripAdvisor and people that defend them are often quoted as saying that it is very easy to spot where there are odd aberrations and savvy consumers will ignore them – and will dismiss the most praising and most damning – is that not true?
Where a business has many reviews, this will often be the case. But even then that does not mean to say that anyone has to accept lies being told about them. In the case of many smaller businesses, they attract far fewer reviews, so just a handful of malicious comments will seriously damage their reputation – and of course, this can also place them lower down the TripAdvisor ratings system, which can severely damage their ability to compete.
TripAdvisor state that they have extensive systems in place that help prevent false comments – are these not effective?
The details we have given regarding specific instances of abuse appear to demonstrate that a considerable amount of very concerning content is being posted and is remaining visible. In many cases, TripAdvisor make the decision to continue showing the comments themselves even when the precise circumstances are presented to them.
Who are the people responsible for posting false and malicious comments and what are their motives?
We have already identified situations where they have been posted by competitors of the attacked businesses and are currently investigating examples that are alleged to be the work of ex-employees and failed interviewees. We have been offered evidence that in some cases, the perpetrators have been making financial demands and are seeking verification.
Is this the only action taking place?
No – other actions are being prepared. In particular legal applications for disclosure of information on individuals that have posted serious defamatory comments – and further actions will be taken when publishers of sites containing such content do not take appropriate action when provided with evidence that the allegations are false.
Details of Specific Cases Being Submitted to TripAdvisor
Type 1 – Actions that have been carried out by TripAdvisor directly.
These involve comments and actions by TripAdvisor themselves which are harmful to the reputation of businesses they have singled out. These businesses have a good reputation, even with regard to TripAdvisor member ratings.
i) Email sent by TripAdvisor to members, advising, ‘Don’t go there – hotel horror stories’ which grossly misrepresented the status and standards of some businesses and was at odds with their own members opinions.
ii) Website feature – ‘Rants and raves – the best and worst revealed’ which grossly misrepresented the status and standards of some businesses and was at odds with their own members opinions.
Type 2 – Allegations of criminal behaviour brought to the attention of TripAdvisor which they have refused to remove or even suspend from their site. In virtually all cases we have investigated to date, there have been no complaints made to the proper authorities. This alone makes such posts on TripAdvisor suspect and if any are true, failure to do so is putting the public at risk. Allegations of this nature should be proven in a court of law.
i) Accusations of racism against owners / staff.
A search on TripAdvisor produces over 2,000 results for ‘racist’ and ‘racism’. There are several of these cases we are pursuing – and we have used one of these to highlight the type of issues being faced by reputable businesses. (See – ‘Judged by TripAdvisor’)
ii) Accusations of theft
There are over a thousand accusations of theft against owners, managers and staff on TripAdvisor. Several owners have failed to get such posts removed and have now contacted KwikChex in a bid to defend themselves.
ii) Accusations of assault
Over 1,100 results on TripAdvisor, many alleging physical and sexual abuse against managers and owners that wish to clear their names in a court of law, but who have up until now, been prevented from doing so. In another case reported to KwikChex, an owner has been accused of driving her car at a guest and threatening him to the extent that he was in fear of his personal safety. Evidence offered to TripAdvisor included CCTV footage, statements from other guests and clear motivation for malicious posting. TripAdvisor refuses to remove the post.
iii) Accusations of food poisoning
A search using the term ‘food poisoning’ on TripAdvisor produces nearly 11,000 results. KwikChex has received notification from over 300 businesses that have been accused that state that they have had no notification of food poisoning and have never been found to have caused food-borne illness by health authorities. They cannot contest these serious allegations because TripAdvisor state that they do not seek to verify such statements and the owners are not able to even investigate since they cannot establish the identity of the poster. It is of course possible that the poster may not even have been a customer. KwikChex will seek to identify such posters in order that the owners can properly defend their reputations and will request at the very least the suspension of the reviews in the meantime.
Note – in many of these cases, TripAdvisor has described the poster as being ‘written by a trusted member of the TripAdvisor community‘ although they do not have any basis for describing them this way.
Additional poor practices submission
In addition to the above, KwikChex is requesting that TripAdvisor reviews and corrects aspects that are ethically questionable, and open to severe abuse or which may not present an accurate perspective – namely:
- Removing all posts that instruct people to go to a named competitor instead of the business they are checking reviews on. A search using the term ‘ go to instead’ produces over 90,000 results.
- Removal of offensive terms such as ‘crap’. A search produces over 34,000 results, many of which only contain that single word. These are obviously not informative opinion – they are insults that contain not one shred of evidence that the poster was even a customer.
- Removal of any reviews over 18 months old. There are millions of reviews that fall into this category on TripAdvisor. They are unlikely to be accurate or of use to consumers. Owners quite rightly complain that whilst they can point out that extensive refurbishments have taken place, the old, invalid negative posts still affect their ratings.
Judged by TripAdvisor
Brook Barn Country House in Oxfordshire has earned itself the highest reputation – one of the top places to stay in Oxfordshire on Trivago,
AA 5 stars – and a 97% ‘popularity ranking’ on TripAdvisor.
They have just asked KwikChex to help with a defamation issue on TripAdvisor.
5 days ago, a post appeared on their TripAdvisor profile. It wasn’t from a customer, but rather from someone that just dropped by and wanted a tour. They considered the manner of the owner a little on the brusque side – so went on to TripAdvisor when they got home and branded them as racists – and recommended that any ‘ ethnics’ stayed away.
Horrified, the owners contacted both the police and TripAdvisor. The police responded quickly and with great concern.
After considering the circumstances, TripAdvisor responded with an email that stated ‘We have looked at the review in question and determined that it does meet TripAdvisor’s listing criteria. Therefore, it will not be removed.’
Even a cursory glance at the post would determine that it is libellous as an accusation and has been made with no substance whatsoever.
By making an accusation of racism, the poster is inciting racial hatred, almost certainly contravening UK criminal laws.
TripAdvisor also stated in their email; ‘While we are unable to remove the review in question, we do respect and support your right to explain your perspective through our management response feature. This feature provides you with the opportunity to respond to the language of the review and tell your side of the story. Your management response will be attached to the respective review so that our members can read both perspectives.
Whilst far from satisfied, the owners viewed it as essential that some type of response was made, so they used the suggested management response feature.
TripAdvisor have not published their response.
This case epitomises the issues at stake for business owners. There are thousands of such serious allegations on the site. All are unverified. TripAdvisor enable these to be published to a worldwide audience. They unilaterally, without verification, reject the submissions of the maligned business – even when offered evidence – or even as in this case, when it has been serious enough to report to the police.
This is not an isolated incident as the outline details / statistics of our submissions to TripAdvisor demonstrate. When dealing with the reputation of a business or individual, it is not acceptable to say that the majority of the reviews are OK. That is like saying that it is excusable to call someone a thief, a racist or an abuser as long as 300 others have said they are honest. If such accusations were made against a police officer or a judge, you would expect legal action to follow. Why should it be acceptable to permit it and protect the perpetrators because they are a restaurant, hotel or other business that counts on goodwill and reputation to earn a living?
In addition to the legal aspects, there is a burning question of ethics to be answered here. It is cases like this that are at the heart of what KwikChex are doing on behalf of our members and in our broader quest to see fundamental changes take place that protect decent citizens and which do not mislead the public.
Update to Brook Barn Case study 27/09/2010
Whilst Tripadvisor originally refused to remove the post in question, following extensive press coverage it has now been deleted.