Hotels Give TripAdvisor Low Ratings - Fordham Intellectual Property, Media & Entertainment Law Journal
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Hotels Give TripAdvisor Low Ratings

Hotels Give TripAdvisor Low Ratings

What do you do when a bad review of the hotel you manage is published online—and not just a bad review, but one that falsely suggests criminal behavior on the part of your staff?

TripAdvisor.com, which bills its network of websites as “the largest travel community in the world,” gives some options to maligned hotel managers, who can respond to bad reviews or request that fraudulent reviews be removed by TripAdvisor.  However, as highlighted in a recent New York Times article, when it is a traveler’s word against a hotel’s word, TripAdvisor often gives the benefit of the doubt to the traveler and declines to remove the bad review.  Furthermore, in these situations hotels have no legal recourse against TripAdvisor, because Section 230 of the Communications Decency Act states that no provider of an “interactive computer service” (e.g. a website) shall have liability for posts written by third-party users.  The law therefore treats these websites as passive conduits of information, rather than “speakers” or “publishers” who might have liability under defamation laws.  See 47 U.S.C. § 230 (2010).

Undeterred, a British reputation-management company called KwikChex is organizing a lawsuit against TripAdvisor on behalf of a group of business owners.  Their grievance relates to emails TripAdvisor sent to its users containing collections of particularly negative “hotel horror story” reviews.  KwikChex’s argument will apparently be that § 230 protections should not apply to TripAdvisor here because, by performing selective aggregation of “hotel horror story” reviews and then distributing those collections, they acted as creators of content, not just passive conduits.  A secondary argument is that TripAdvisor exceeded the role of a simple “interactive service provider” by presenting certain reviews as coming from “trusted” site users.

Attempts to overcome § 230 immunity for websites have generally been unsuccessful, with the notable counterexample of the Roommates.com case.  Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).  However, Roommates.com is not closely analogous to the TripAdvisor situation, because the website in that case required users to answer questions that were illegal per se under the Fair Housing Act.  There is no corresponding argument that TripAdvisor, by inviting users to post hotel reviews, necessitated the creation of defamatory content.

Whether TripAdvisor’s “hotel horror story” emails constituted content creation could depend on the nature of those emails and TripAdvisor’s process for creating them, but programmatic transformations of user-provided content do not make a website an “information content provider” who therefore loses § 230 immunity.   See Carafano v. Metrosplash.com Inc., 339 F.3d 1119, 1124 (9th Cir. 2003).  KwikChex’s second theory, that the “trusted reviewer” tag constitutes endorsement by TripAdvisor, is also unlikely to succeed.  The Northern District of California, discussing a similar argument in another case, recently stated, “Plaintiffs’ attempt to depict Defendant as a sponsor or endorser of the comment is, in effect, an end-around the prohibition on treating it as the publisher or speaker of it.  Such a ploy, if countenanced, would eviscerate the immunity granted under § 230.”  Black v. Google Inc., No. 10-02381 CW, slip op. at 6 (N.D. Cal. Aug. 13, 2010).

Since bringing suit against individual TripAdvisor reviewers is likely inefficient for hotels, you cannot blame them for seeking leverage over TripAdvisor itself.  But sticking TripAdvisor with liability for defamatory reviews is probably not how they’re going to get that leverage.

Leo Martin