"Negative Reviews? Call A Lawyer – But Maybe Not Right Away," HOTELS Magazine 

March 31, 2016

In our increasingly narcissistic culture, not only is everyone a critic, but everyone thinks their opinion is of the utmost importance. Smartphones permit us to instantaneously inform everyone of our day-to-day activities via Twitter and Facebook, and to send out pictures of our purchases, our food–and often, how angry we are at the customer service we experience via consumer review websites.

One of the most popular targets for online consumer reviews is the hotel and hospitality industry. While positive reviews can increase business and revenue, negative reviews can have the very opposite effect. A hotel’s bottom line may be adversely affected by online reviews that may or may not be factual, and the hotel must decide whether to pursue formal legal avenues to delete (if not deter) such reviews.

Before engaging in the expensive and time-consuming legal process, here are some factors to consider:

Is the online review factual?

The truth will serve as a legal defense to a claim for defamation. Before contacting an attorney and paying a considerable retainer to initiate a lawsuit, determine whether the online review has any legitimacy. Talk to your receptionist to determine if he/she was rude to any guests upon check-in. Speak with your housekeeping staff to clarify if they may have inadvertently skipped a room. Confer with your restaurant staff to establish if anyone was denied a table for no justifiable reason.

While it can be easy to discount negative reviews as “sour grapes,” sometimes an online review exposes the ugly truth and will thus not be capable of being redressed by the legal process (and may actually address a lingering problem in the way your hotel treats its guests).

Is the online review an opinion?

There are significant protections, both in the U.S. and abroad, to protect the freedom of speech. Generally, a claim for defamation will require that the individual publishing the online review state, as a “fact,” something that is indisputably untrue (as opposed to a mere opinion that could differ based on the viewpoint of the individual consumer).

For instance, an online review that states your hotel’s deposit policy is “barbaric” or “outrageous” will likely be held to constitute an opinion not subject to a lawsuit. However, if the review falsely declares that your hotel “refused to provide the deposit back upon check-out” or “stole all of the deposit,” it likely constitutes a statement of fact that would subject the publisher to a lawsuit.

A claim for defamation will require not only that the online review consist of an untrue statement of fact, but that the person publishing the review acted with negligence or even malice (i.e. reckless disregard for the truth) in publishing the review. So it is very important to consider whether the offending statement(s) can in any way be deemed to be an opinion as opposed to verifiable facts.

Can the person publishing the online review be identified?

If the person publishing the online review can be identified, a possible remedy is to have legal counsel send him/her a “cease and desist” letter explaining that the review is untrue and causing your hotel damages, and providing a date on which the review should be removed. Many times, it is also a benefit to reply to the online review with this same information so the published receives notice of your intentions (and thus has the opportunity to remove or retract the review). However, most often, the anonymity that provides an individual comfort in publishing an online review is the very anonymity that will protect him/her from being identified.

If you believe that the online review published is not an opinion, can be proven to be false, and has affirmatively caused your hotel damages in some way (for instance, you obtain information indicating that “but for” the offending online review, a consumer would have stayed at your hotel), it may be worthwhile to consider pursuing a legal claim.

Engage in a Cost/Benefit Analysis

Hiring an attorney to pursue damages in connection with a negative online review can be expensive. You must determine if the benefits in seeking to remove the offending review and/or to seek damages are outweighed by the potential costs. More likely than not, your claim will be against the individual publishing the online review, not the website on which that review appears. If the identity of the publisher cannot be ascertained from the face of the review, it will be necessary to file a “John Doe” lawsuit and serve subpoenas on the website hosting the review in an effort to track down his/her identity. Many times, and after significant time and expense have already been incurred, the individual identified either cannot be located or does not have the financial wherewithal to satisfy a meaningful judgment.

Other Options

While not a formal legal option, you can also simply track your hotel’s online reviews and respond to them in a meaningful yet non-argumentative way. While many consumers rely on such reviews to decide where to spend their time and money, most consumers appreciate that online reviews are not always accurate and can result from mere resentment that consumers experience when they didn’t get their way. A simple apology or even acknowledgment of the publisher’s concerns and an explanation of any changes or means you have or will implement to address those concerns can many times be more effective then seeking formal legal redress.

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