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How to deal with bad online reviews

05 January 2011
How to deal with bad online reviews

Think there's nothing you can do about untrue, fraudulent or damaging reviews on websites? Victoria Symons outlines the options available to hospitality businesses and explains how to respond and seek redress


THE PROBLEM
My hotel has received some reviews on websites that are untrue - and I have a pretty good idea where they have come from. Is there anything I can do to get them removed and is it possible to seek damages?

THE LAW
Looking first at the position of the website operator, most operators incorporate terms of use into their website. These specify what the operator is responsible for and - usually - exclude the operator's liability for a vast array of matters. These terms are typically incorporated through a button on the website.

Terms of use invariably attempt to exclude the operator's liability for the content of any reviews. Such limitation clauses will only be effective if they are "reasonable". There is some debate as to whether a blanket exclusion of liability can be reasonable, particularly where the operator has failed to take adequate steps to monitor the content of its site or react to feedback.

Turning to the position of the reviewer, in rare circumstances the posting may be so inappropriate as to warrant criminal investigation by the police. In other circumstances, it may be possible to bring a civil action for damages, but this would depend on being able to identify the reviewer, show that financial loss was suffered and that the loss was caused by the review.

EXPERT ADVICE
Increasing concerns regarding the abuse of online reviews recently resulted in a group action being coordinated by more than 700 hoteliers and restaurateurs against one of the major website operators in the industry, claiming it should take more responsibility for the posting of fraudulent or defamatory reviews.

Short of commencing proceedings, most operators provide a clear contact point for complaints within their terms of use, so you should raise the issue with them, providing as much detail as possible. Some operators will remove reviews, while others are happy to give you the opportunity to rebut or respond. If you do so, be concise and deal objectively with any points made.

You mention you have an idea as to the source of the review. You should ask the operator to provide any details it may have to support your theory and, if you are clearly suffering financially as a result, it may be possible to seek an injunction forcing the operator to provide further information to trace the reviewer.

Interestingly, the operator may be in a better position to seek damages from the reviewer than you, as its terms of use will often contain a warranty from the reviewer as to the accuracy of information provided, and an indemnity to the extent the operator suffers any damage as a result of a false review.

CHECKLIST

â- Contact the operator to ask for removal of the review, or the right to rebut.
â- Ask the operator for assistance in confirming the identity of the reviewer and consider action to force it to cooperate.
â- Consider contacting the reviewer, if there is sufficient evidence, with a letter before action and consider the basis of a claim.

BEWARE
As frustrating as the circumstances may be, it is essential to think before you act. Withdrawing your hotel from the website may result in a fall in business, and publishing falsified positive reviews to "drown out" the poor review is a dangerous strategy if they do not match the service provided.

In practice, the best way of minimising the impact of poor reviews is to encourage genuine guests to provide genuine reviews based on the excellent service provided.

CONTACT
Victoria Symons is a partner at Boodle Hatfield
vsymons@boodlehatfield.com

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