Social Media - The Bad Review. What can you do? | Insight

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.

	Issue	Suggestion
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?	Consider the terms and conditions of use and user rights instituted by the platform to understand the approach usually taken to complaints. Most social media platforms have complaints handling departments. Consider lodging a complaint to the platform in writing. In the first instance, complaints are usually dealt with by non-lawyers who we understand will usually issue a response in accordance with the customer/use policies of the platform. Platforms tend to leave comments up unless there is a very clear issue. If the platforms do decide to remove the comment, unless a user has routinely breached a platform's terms, the approach for dealing with an offending comment will usually be to take the comment down without banning the user permanently. Most social media platforms provide an ability to comment or respond to a critical review or post.
2	If the social media platform is unhelpful in the first instance then is legal recourse available?	A lawyer can be engaged to communicate with the platform. Any lawyer engaged should ideally be experienced in dealing with the way social media platforms handle complaints to avoid unnecessary cost. Generally the aim of engaging a lawyer is to convince the platform to delete the offending comment and to prevent the user from making further negative comments rather than to seek damages against the platform.
3	Can legal proceedings for damages be brought against the platform?	Once the platform is on notice of a potential claim then it can become legally liable for damages and proceedings can be brought against it. The response of the platforms to the commencement of legal proceedings will vary on a case by case basis. If the platform does not have a presence in the jurisdiction where the hotel is located then significant cost may be incurred in joining the platform to the proceedings due to the difficulties in serving proceedings and enforcing orders.
4	Can legal proceedings be brought against the user who made the negative comment or post?	In a number of cases, yes. As we discuss below, if a specific employee is identified, he or she may have a cause of action in defamation if the post makes damaging and untrue statements about such employee personally. In other cases, there may be an action for injurious falsehood or misleading or deceptive conduct. These are harder to establish. Injurious falsehood requires a plaintiff to prove the comments were made maliciously, and misleading or deceptive conduct only applies to conduct in the course of trade or commerce. Both require proof of actual damage arising from the comments, which can be hard to demonstrate. Steps can be taken to seek to identify the user but this can be expensive to implement especially if the platform has no presence in the jurisdiction and subpoenas requesting the relevant information need to be issued in a foreign jurisdiction. Even if a judgement can be made against the user, any payment that can be extracted from the user depends on the user's financial circumstances. This should be weighed up against the cost of initiating legal proceedings. There is the potential the user could successfully defend any proceedings and be granted an order that the hotel pay its legal costs. The potential that the user could be funded by interested groups or crowd funded needs to also be considered.
5	Can a hotel bring defamation proceedings against the user?	In Australia, a company with 10 or more employees cannot sue for defamation. This would rule out many hotels. However it would be a different matter if the object of the defamatory comments is a person and not a company such as the head chef in a hotel who is, for example, accused of unhygienic food preparation procedures. The head chef may be able to 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?	In Australia at least, if a public social media page is run by a business (and in particular, news organisations), the business may be liable for an offending post from the moment the post is published, or from the time they are put on notice of the presence of the comment. This means that the individual the object of the defamatory comments may be able to bring defamation proceedings against the business (rather than the user). Please note however that the case from which this principle stems has been unsettled by a recent decision which is currently on appeal. As a consequence, Australian law may impose a more stringent standard on public social media pages run by businesses than social media platform providers.
7	What if a hotel is criticised by a social media influencer? What can the hotel do?	The usual courses of action as discussed above also apply to an influencer if such person makes any defamatory or false posts about the hotel or an employee of the hotel. If the influencer is being paid by another party (for example, a competitor of the hotel) to post negative comments, then this relationship needs to be disclosed by the influencer to avoid being accused of misleading and deceptive comments.

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.

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