Wake-up call – What difference will ASA's TripAdvisor ruling make

The Advertising Standards Agency's findings that the trust­worthiness of TripAdvisor's reviews are misleading has knocked the site's credibility, but does it make any difference to operators? Steve Kuncewicz explains

THE PROBLEM
Your hotel or restaurant has been the subject of a negative review on TripAdvisor or another website publishing reviews from members of the public. You disagree with it and think it should be removed or corrected.

THE LAW
The content of websites in the UK is controlled by the Advertising Standards Authority's (ASA) Committee of Advertising Practice (CAP) Code. This is designed to prevent "misleading advertising" and contains obligations for website owners to ensure that the content featured on their site is "legal, decent, honest and truthful".

TripAdvisor has recently been investigated by the ASA and found to be in breach of the CAP Code over its claims that reviews on the site could be "trusted" and were from "real travellers". The ASA ruled that, as TripAdvisor does not verify the reviews which it posts, it cannot legitimately claim that they are "trusted", "real" or "honest".

Although the adjudication knocks TripAdvisor's credibility, it will still continue to post reviews and remains very popular. If a review is not genuine and lowers your business' reputation in the view of your existing or potential clients, then you may be able to take action against the review site for defamation.

TripAdvisor's terms of use contain a "take down policy", which allows you to notify them of any potentially defamatory reviews âˆ' this should usually be your first port of call in taking action. The best way to counter any defence is to show that the review is not based on true facts or was posted maliciously - this can be difficult where reviews are posted anonymously.

EXPERT ADVICE
Anyone running a review site should be familiar with at least the basics of defamation and advertising law. The CAP Code, in particular, now extends to the contents of a website and also to any comments made on social networks that are then adopted and used on a website, such as customer testimonials or reviews.

The code requires websites to be able to substantiate where any statement came from. Anyone using reviews should always have a screenshot of the social network from where it was taken.

If you are a hotel or restaurant which has received a negative comment or review, contact the site or forum in question immediately and take action. Most comments will usually be removed, but in some circumstances the site will want to leave them in place and may do so on the basis that they are not defamatory. You must be able to explain why the review is incorrect and address every allegation being made. Remember, not every bad review is defamatory, especially if it's based on true facts.

CHECK LIST
â- Be able to explain why the complaint, comment or post is incorrect or misleading, defamatory and affecting the reputation or other aspects of your business.
â- Monitor any relevant forums and take action where necessary.
â- Set up Google Alerts to ensure that you're notified when any new comments are made about your business (they will cover blogs and social networks as well as websites).
â- Remember that the ultimate goal is to deal with the complaint. If you're faced with a complaining guest who posts false information on different forums, going after them as well as the websites may be your only option.

BEWARE!
Not every case will justify removal of the post and your aim is to remove incorrect or misleading information. Your reputation may suffer even more damage if you are seen to be taking action without justification, or trying to stamp out free speech. After all, you still want people to talk about you!

CONTACT
Steve Kuncewicz is an intellectual property and media lawyer at Gateley