Hoteliers are guilty until proven innocent

This is an actual case — one I believe underscores a fundamental flaw in our current social media environment.

A relatively new property has an ongoing dispute with a neighbor. The dispute has nothing to do with the operation of the property, but rather the concern that the property will cause a reduction in property values due to noise, increased traffic and parking challenges. The neighbor is vocal about his concerns and expresses them to the municipal government, sighting possible bylaw improprieties. The local government rejects the neighbor’s appeal.

Not satisfied with the outcome of the “official” complaint process, this individual resorts to social media as a means of extracting revenge against the hotel. The approach involves writing extremely negative reviews, which are duly posted.

The hotel manager reads these reviews and is puzzled by their context. In particular, the general manager notes the following:

  • The review includes information that was revealed in confidence to the local neighborhood association and was unknown by anyone else, including the staff.
  • The same reviewer posted very positive reviews of key competitive properties on the exact same day as the negative review.
  • The day of posting is the same day the municipality rejected the individual’s bylaw complaint.

Round one

The general manager appeals to the website to have the review removed, on grounds that it is not genuine. The predictable response (company name removed):

“Removing reviews is not something we take lightly, and it is only done when it violates our Terms of Service or Content Guidelines. We understand that you may be frustrated with our decision to keep the review intact, but unfortunately this is our position. We would again remind you that you can contact the reviewer directly or publicly comment on the review. Many reviewers respond favorably to business owners who are willing to engage in a constructive conversation.”

Round two

Not content with this automatic response, quite literally received within minutes of the complaint submission, the general manager provides a complete detailing of his analysis. The response takes a couple of days, but reads as follows (company name removed):

“Thanks for taking the time to write us again. Removing reviews is not something we take lightly, and it is only done when it violates our Terms of Service or Content Guidelines. We understand that you may be frustrated with our decision to keep the review intact, but unfortunately our position remains the same.

“While we share your concern about the possibility of a defamatory review on our site, we don’t adjudicate disputes between businesses and their reviewers. Congress acknowledged this predicament by passing legislation that provides statutory immunity to online service providers for the content of third-party posts. See 47 U.S.C. §230. The case law is clear on this point in support of online service providers because of concerns that they would otherwise be forced to remove third party posts every time someone raised issue with their contents. See Carafano v. Metrosplash. com. Inc., 339 F. 3d 1119 (9th Cir. 2003); Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); Barrett v. Rosenthal, 40 Cal. 4th 33 (Cal. 2006).

“That said, we will revisit your request if you provide to us a final judicial determination that the contents of a review are defamatory and will, at our discretion, remove such a review and take appropriate action with respect to the user responsible for the review.

“We encourage you again to contact the reviewer directly using the private messaging function on our site in order to constructively address your concerns. We do not recommend that you engage in anything other than a well-meaning dialog with the reviewer in order to sort out any misunderstandings.”

Next steps?

Needless to say, the general manager is not happy. Does a “final judicial determination” mean that the property has to institute a local proceeding to deem this comment as defamatory, when that is clearly obvious to anyone reading it? Is defamatory conduct by a reviewer considered protected as free speech?

What about the rights of the hotel? With rating averages calculated instantly and negative reviews having a clear impact on bookings, how can a hotel effectively respond?

My recommendation

Hoteliers need to band together. An honest, but unfavorable review is acceptable, and should be considered a teaching tool to improve operations. However, reviews that are clearly suspect should be withheld from publication. The pendulum has swung too far in the favor of the reviewing agencies, which now wield too much unregulated power.

Moreover, consider just how laborious it is to go about seeking the removal of an online review. By the time this actually happens — if it actually happens — thousands of dollars of revenue might already be lost. Part of regulating the power of these reviewing agencies must come in the form of more open communication channels between the website and hotels. If managers have to spend so much time mitigating online defamation, then when will they have time to fix real issues?