Can lawyers destroy TripAdvisor?

Nota bene: After opening the month by discussing the imaginary situation where SEO is no longer a significant factor in web search as well as alluding to the potential drawbacks that negative reviews on third-party sites like TripAdvisor in another article, it seems appropriate to end the month by talking about another hypothetical situation. Again, it may be true or it may be false, but what’s really important is that it gets you thinking!

Let me start by saying that I am not a lawyer, nor do I profess to have any substantial expertise beyond those instances where my attorneys were engaged in matters of trademark or copyright. Nevertheless, articles of legal interest do cross my desk from time to time and this one demands your attention (and that of all hoteliers you know as well). This one comes from two sources: a hotel in upstate New York and a major player in the online information business.

To summarize the cases in a nutshell, a hotel slipped in a non-disparagement clause into its guest contracts, giving the property the right to sue a guest should he or she decide to post a negative evaluation of the hotel on an online review website. The issue is this: Is an individual libel for damages caused by their negative reviews? And is this liability independent of whether their review is accurate or not?

The issue comes down to the rights of free speech versus what rights you give away when you sign your ‘contract’ for your guestroom. That’s right; when your guest checks in, the document they are signing is indeed a contract whereby you (as the hotelier) offer goods and services at an agreed to price (often called consideration), and the guest accepts this, acknowledging the terms, conditions, price and so on.

Typically, these welcome agreements have limits on smoking in the rooms, restrictions on the number of people staying in the room, no pets and so forth – typical boilerplate clauses that most are accustomed to. Guests sign these with little thought, writing their initials beside several key paragraphs and a signature at the bottom. These papers are, in fact, legally binding contracts (offer, consideration and acceptance), whereby both the hotelier and the guests are obligated by the terms or conditions set forth.

Now, let’s say you add in a line that says something to the effect that by agreeing to this contract (that is, a guest staying at the property), the guest has relinquished his or her ability to write a negative review. This line of text could also be added to meeting, group and wedding contracts, where the convener binds members of his or her party to this clause.

So what’s stopping you from quietly and subtly adding a line of this nature into the text of your welcome letter? According to what I’ve read and several lawsuits working their way through the justice system, the clause can be fully binding on the guest. However, a non-disparagement clause may be deemed unenforceable, decided on a state-by-state, court-by-court and country-by-country basis.

Everyone in our industry knows of the importance consumers put on reviews published on sites like TripAdvisor and Yelp. According to TripAdvisor , every month nearly 280 million visitors check their content with another 500 million visits on their partner sites (source: Google Analytics, Q2 2014). Moreover, 89% of surveyed travelers say reviews are influential when choosing where to book (Source: TripBarometer Global Edition, April 2014). Even with these statistics, any savvy hotelier knows that online consumer reviews are instrumental towards future bookings, whether good or bad.

With so many reviews and so much at stake, it will be interesting to see if a no-review policy becomes common for the hotel check-in list process. If adoption of these clauses become commonplace, what would happen to review sites like TripAdvisor or Yelp? On a more personal level, do you see this happening at your property? Do you think that a non-disparagement clause is fair for guests as well as for you, the hotelier, to protect your property’s best interests?