We so often are made aware of instances where a hotel is improperly and negatively targeted by a member of the public, a competitor or some other disaffected person. It could be comments on social media and social networking platforms, review websites such as TripAdvisor or online travel agencies with review boards. It could also be posts made by a social media influencer on platforms such as Instagram or Snapchat. Irrespective of the platform used, the intent is the same - to impact negatively on a hotel's reputation and potentially cause financial harm.
Some examples of negative comments and posts may include:-
- Don't frequent the bar at X hotel because they water down the drinks.
- Don't eat in the restaurant at X hotel because one of the wait staff charges you for food and drinks that you didn't order or the head chef uses unhygienic food preparation procedures.
- Don't stay at X hotel because they don't clean their sheets properly and it gave me bed bugs.
Baker McKenzie, being a global law firm, acts for hotel owners and a broad cross-section of both domestic and international hotel operators in many jurisdictions globally. Our long term involvement advising our clients in this industry enables us, we consider, to make some observations on the correct approach to dealing with and resolving disruptive social media attacks on a hotel's trading activities and reputation.
Since we are based in Australia, we have necessarily approached the issues raised in this article with an Australian emphasis. However, the good news is that we have 17 offices in Asia Pacific and many more around the world to answer any jurisdictional specific questions that may arise from the discussion below.
Further the views expressed in this newsletter are solely those of the authors and the authors alone. Other Baker McKenzie partners and other lawyers across the world practising in this area may have different views. We welcome this diversity of view and perspective it brings to a topic which, to our knowledge, receives scant commentary particularly with respect to the hotel industry. We trust that you find this newsletter informative and thought provoking. Please do not hesitate to contact us if you wish to comment upon any aspect of this newsletter or provide your own insights and views to the matters discussed.
Setting the scene
More often than not, negative comments on social media platforms are anonymous and therefore it is very difficult or impossible to identify the person or persons responsible for the malicious comment. In these instances and where such comments are defamatory or false, the primary objective is to convince the social media platform to remove the offending post and cease to provide access to the account making the offensive comments to avoid further harm.
By way of comparison, if the defamatory or false comments have been made by a social media influencer or an individual that is able to be identified, a different approach may be taken and we will deal separately with that below.
The platforms used by the individuals may not have any physical presence in the jurisdiction in which the hotel is located. That said, these platforms are usually global and have well established procedures for dealing with parties such as hotels that take exception to the broadcasting of negative posts.
For present purposes, we will treat social media platforms, social networking platforms and review websites as a single social media platform as the issues raised are common to all. Please bear in mind however that the approaches we have indicated below relate to comments which are defamatory or false in nature. If a comment, review or post is negative but reflects that person's honest opinion, it will be very difficult to argue for that post to be removed or to make a legal claim in respect of that post.
With these comments in mind we consider the best way to tackle this topic is to provide a number of specific instances where assistance may be required.
|1||If a hotel has been criticised negatively on a social media platform and that criticism is defamatory or false, what is the most cost effective way to deal with this?||
|2||If the social media platform is unhelpful in the first instance then is legal recourse available?||
|3||Can legal proceedings for damages be brought against the platform?||
|4||Can legal proceedings be brought against the user who made the negative comment or post?||
|5||Can a hotel bring defamation proceedings against the user?||
Defamation cases involving social media posts are not new to Australian courts. In 2013, the District Court of NSW ordered a former student to pay AUD 105,000 in damages to a music teacher for defaming her on social media.
|6||Can a hotel bring defamation proceedings against a business, even if the business did not author the defamatory comments?||
|7||What if a hotel is criticised by a social media influencer? What can the hotel do?||
Summary and Conclusion
Whilst critics often draw attention to the shortcomings of legislation and its ability to catch up with the fast-moving nature of social media, when it comes to defamatory or false comments, the legal causes of action that can be adopted are longstanding. The issue for the law is how it effectively provides a disgruntled hotelier with an effective way to deal with false negative comments made by an anonymous user using a platform operated by a multi-billion dollar provider who may have no physical connection to the jurisdiction in which the hotel is located.