TripAdvisor and review sites have performed wonders for the digital marketing world, but disgruntled customers can unfairly use these tools against restaurants. Craig Walker explains how to recover
Your hotel or restaurant is being threatened with a bad review by a customer angry about your cancellation fee. Studies show that as many as 70% of customers under the age of 34 decide what and where to eat based on online reviews, while two-thirds of all customers form an opinion after reading only four reviews. Good or bad, truthful or otherwise, reviews matter and managing them should not be an afterthought.
Unjustified threats of bad reviews would be considered blackmail in the everyday sense of the word, but whether they would be considered serious enough to constitute the statutory offence of blackmail under Section 21(1) of the Theft Act 1968 (unwarranted demands made with menaces with a view to gain or to cause loss to another) is, other than in exceptional circumstances, doubtful.
A related issue is whether your cancellation fee policy is legally enforceable. This would be a matter of contract law and consumer legislation, but essentially if the term has been sufficiently brought to the customer's attention as part of the booking process and is not unreasonable (taking account of such matters as the amount and notice period), then there is no clear reason it should not be enforceable.
In most cases, unless the threats are particularly serious, the best course, at least initially, would be to inform customers threatening negative reviews that they are making a malicious threat and to contact relevant review sites. Most review sites, including TripAdvisor, have facilities to enable business owners to alert them to such threats, allowing action to be taken before any reviews are posted.
If a bad review is posted, you will normally have the opportunity to professionally and calmly state your case as a comment near the review. Your next port of call should be the review site, explaining clearly the circumstances and requesting that the post is removed.
Failing that, a letter from a lawyer may carry more weight to get the review removed. If appropriate, the letter should explain that the review is malicious and defamatory or it is a malicious falsehood, both of which could give rise to a claim for damages and/or an injunction. As a general rule, court action should very much be a last resort, as litigation is risky and costs would likely be disproportionate.
If someone posts ‘false words' about you, your property or business, and does so with harmful intent, in theory this might give rise to a claim for malicious falsehood. You don't need to show reputational damage, but you must prove that the statement was false and made with improper motive.
In either case, you have one year from the date the comment or post was first published to make a claim. The usual remedy, if you win, is a monetary award of damages, which may be very modest. A more cost-effective solution may be to ask the website on which the comment was posted to remove it.
• Ensure your cancellation policy terms are sufficiently clear and reasonable
• Report threats of bad reviews to review sites in accordance with their guidelines and terms
• Always be calm and restrained in responses
• Seek legal advice.
Do not retaliate to threats with offensive or defamatory comments as this is likely to damage your case, not to mention the reputation of your business. Be professional and calm at all times.
Craig Walker is a partner in the dispute resolution team at Goodman Derrick LLP
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