Q: A leisure client claims that he received poor service from our specialty tour operation. We allegedly did not return his calls, misquoted a tour price and then ignored his complaints after the trip. Now he is threatening to post bad reviews of us on TripAdvisor, Yelp and other sites. If he does so, could we successfully sue him for libel? If not, is there anything we can do to prevent such postings?
A: You probably could not win a suit for libel or any similar allegation. However, there are a few steps you can take to prevent the posting or lessen the damage.
While the law of libel differs a bit from state to state, in general you must prove that a statement was "factually false" and that the defendant knew that it was false and would be harmful to your business. Statements that are really just opinions are not facts and therefore cannot be "factually false."
So if a posting states that your agency gave "poor service" or that your agents were "dumb," you could not win because the quoted words are mere opinions. On the other hand, a posting such as "they never returned my calls" could be factually false if you can prove its falsity. Ultimately, it is up to the judge or jury to decide if a statement is fact or opinion.
Almost all lawyers who specialize in defamation cases discourage businesses from filing such suits because of the potential downsides: the cost and the publicity backfire. Legal fees can add up to tens of thousands of dollars even if you win, and with resulting publicity, you could end up with a worse reputation than if you had ignored the defamation.
The danger of such suits is shown by the U.S. Court of Appeals decision last summer in the case of Seaton v. TripAdvisor. Seaton was the proprietor of a hotel that TripAdvisor listed as No. 1 on its list of "2011 Dirtiest Hotels" in America. The listing was based on unverified user reviews that included factual allegations that were possibly false, but the court held that the plaintiff could not win because: "First, TripAdvisor's use of 'dirtiest' amounts to rhetorical hyperbole. Second, the general tenor of the '2011 Dirtiest Hotels' list undermines any impression that TripAdvisor was seriously maintaining that Grand Resort is, in fact, the dirtiest hotel in America."
The court dismissed the case, leaving Seaton to pay his legal bills and endure nationwide publicity about the dirtiness of his hotel. While every hotel company would probably disagree with the court's reasoning, the holding shows that you never know how a defamation suit is going to come out.
At this point, you may be able to prevent a TripAdvisor posting by following the anti-blackmail procedures in the "Management Center" on the TripAdvisor website. You report the potential blackmail before the review is filed, and TripAdvisor may decide to block the bad review.
The procedures may not apply to tour operators, and even if they do, there is no guaranty that TripAdvisor will help you. Therefore, if you cannot settle the matter with the client directly, your best bet on any review site is to submit your own response to the complaint, rebutting the accusations or pointing out the unreasonableness of the client's demands.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].