News of a proposed action by a group of over 400 hotels and restaurants against the review site TripAdviser will be followed with interest by internet users and legal observers alike. It has been alleged that some of the reviews posted on the TripAdvisor website contain false allegations intended to affect business and impact on reputation. If the group can show that the content posted on the website is defamatory, TripAdviser would then have to either prove the truth of the statements posted under the ‘justification’ defence or defend them on grounds of ‘fair comment’.
Fair comment is a defence commonly relied on by critics and reviewers in media. The defence applies to a statement of opinion where a review is simply giving the writer’s opinion or comment however bad this may be. The right to express opinion on matters of public interest has grown increasingly popular on the internet through various online forums, social networking sites and user reviews however the comment or criticism should be fair, honest and based on true facts. The freedom to have an opinion is entrenched in the law on human rights and the fundamental principles of freedom of speech.
To falsify and distort facts and then to comment on them as if they are true is clearly not a fair comment and the potential claimants in this action are concerned about the nature and content of what is alleged in some of the reviews.
There is however some additional protection for internet service providers hosting online forums and review sites. This is where the ISP does not have actual knowledge of the defamatory material or knowledge of the facts or circumstances from which it is apparent that the information is defamatory. If on obtaining knowledge of a defamatory statement the website fails to act expeditiously to remove or disable access to the defamatory material it will lose this protection.
Therefore TripAdviser may be required to swiftly remove material once they are given notice of any defamatory content which falsifies facts in order to avoid legal action.
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