Read this before posting on Yelp or TripAdvisor

Hotels and restaurants are increasingly fighting back against negative online reviews -- by suing the writers. So be careful how you phrase your disgust with that disappointing dinner.

By TheStreet.com Staff Mar 7, 2014 1:01PM

Yelp sticker on a New York restaurant window (c) Scott Eells via Bloomberg/Getty ImagesBy Robert McGarveyMainStreet


The trickle of lawsuits that have been filed by restaurants and hotels over negative reviews posted to sites such as Yelp (YELP) and TripAdvisor (TRIP) is about to become a torrent. That's the opinion of many experts who say this now is inevitable.


"Businesses that generate income from Yelp and TripAdvisor will be more and more aggressive about how they protect themselves," said James T. Hunt, an attorney with Slater, Tenaglia, Fritz & Hunt in New York.


TheStreet.com logo"The rapid growth of online reviews has certainly led to an increase in lawsuits against reviewers," said Josh King, general counsel for legal marketplace Avvo.com, which features reviews of attorneys by clients.


Bad reviews can translate into lost revenues and that has become a prod for businesses to file suit to silence critics.


They rarely will sue the sites such as Yelp and TripAdvisor, which have significant legal protections because they are not expressing opinion. What they do is provide a venue for others to express and a body of federal law says that is protected activity.


That means the angry businesses will point their gun barrels at you, the poster.


There isn't any hiding under a pen name, either. Most review sites -- possibly all -- will reveal what information they have on a poster if presented with a court order. That information generally amounts to an IP address, rarely much more, but with that and a little investigative luck, sometimes the identity of the user can be determined. And a lawsuit gets filed.


Don't you have "free speech?" Succinctly put: Free speech exists in online forums but targets of that speech -- hotels and restaurants are cases in point -- have a right to defend themselves when subjected to defamation, which are statements that are damaging to the person or business's good reputation.


Many lawyers have traditionally shied away from defamation suits because they are not easy to win -- but more of them are getting filed because, frankly, more defamation is happening.

So, exactly when do reviews trigger lawsuits?


In perhaps the most celebrated lawsuit of its kind, early this year a Fairfax, Va. jury reached a verdict in the case of contractor Christopher Dietz vs. Jane Perez, a homeowner. Perez had posted a Yelp review wherein she said that Dietz had botched a home improvement job and jewelry had been stolen during the work.


Dietz yelled foul, and filed suit. When the jury ruled, it said, indeed, Perez had defamed Dietz -- but it added that Dietz, in various postings, had defamed her. He had sued for $750,000. The jury decided nobody was owed damages.


In Quebec City, Canada Laurent Azoulay stayed at the Hotel Quebec where, he alleged in a TripAdvisor review, he was bitten by bed bugs. The hotel responded with a suit for $95,000. That case is in Quebec's Superior Court.


Either way, win or lose, it will be expensive for Azoulay, because legal defense does not come cheap.


How can posters defend themselves against suits?


"Expressions of opinion usually are protected," said Bryan Sullivan, an attorney with law firm Early Sullivan in Los Angeles.


In general, it is fair to say: "In my opinion, the soup tasted canned" or "In my opinion, the hotel bathroom did not smell or look clean."


Trouble lurks in statements of fact, because they can be disputed. Say: "The restaurant serves canned soup" and if there is not a can opener in the joint, you are in trouble.


Ditto for: "I was bitten by bedbugs."


What if you were bitten? Said attorney Columbus, Ohio attorney Shane McClelland: "Truth is always a defense."


The trouble comes in proving it is true, that in fact those red marks are bed bug bites that you did not have before entering the hotel.


Proof can be elusive.


That is why, when posting the truly negative, even better than truth is when "five or ten other posters share similar feelings," said Hunt. Numbers bring safety, certainly in online forums.


Yes, but you swear there were cockroaches parading across the table in that Middle Eastern eatery on the Upper Eastside? I feel your pain, I have seen them, too, but until I snap a photo of them with my Android, my lips are sealed about the establishment's identity - and that is the advice for you before rushing to vent on Yelp or TripAdvisor about matters of fact.


Post. Vent. But stick with opinions. And emotions ("I hate the pizza here, wouldn't feed it to my chinchilla"). Don't veer into facts, because that is where the risks escalate.


That's the formula for safe posting, and probably very soon we all will need to follow that advice as lawsuits multiply.


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27Comments
Mar 7, 2014 3:17PM
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With all due respect, in my opinion, msn is a bunch of........(BANG!).... (Thud).

Mar 7, 2014 4:52PM
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As of this article, the few lawsuits that have been filed have been dismissed or the defendant (complaint writer) has won. Don't want negative press/feedback, then provide exemplary service. It's that simple... Besides, don't both Trip Advisor and Yelp exist to provide travelers with traveler-experience information???
Mar 7, 2014 3:24PM
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How is the average person going to know what they can say or not say?

What words we can be use and not use?

Only safe thing to do is not even talk.

Just shut everyone up.  No one can fight a big money person.

Talking can get you in trouble, not sure about this free speech any more, big money can nail you to the cross.

Someone with money can always come up with charges of one type or another.

Too many " do good organization" out there ready to nail you for the wrong word.

How about a list of words we can't use any more.  Might save problems.

 Uncle Sam unapproved words that get you in trouble.


Mar 7, 2014 5:22PM
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As a consumer, this is pretty terrifying. No longer can they buy off reviewers, but now they can target anyone who talks bad about them and drag them into an expensive legal battle they could never hope to win. How the heck are you supposed to fight back, or have an opinion? The internet was supposed to be a way for the truth to get put forward, where companies couldn't just buy off a good review, or pay the paper not to run an article. Now you can't even have an opinion.

Even then, lets say you do get photos of the activity. What stops them from saying you're not allowed to take damaging photos in their establishment? Just look at the new law dredged up in Idaho. You can't take video or take pictures at Farms, even if it's to show abuse. I have a feeling that could literally start happening here, too...

Mar 7, 2014 7:16PM
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Sounds like if you want to write a bad review you need to go to a public library. When the I.P. address goes back to the public library the offended party has nothing...
Mar 9, 2014 1:39PM
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"There isn't any hiding under a pen name, either. Most review sites -- possibly all -- will reveal what information they have on a poster if presented with a court order. That information generally amounts to an IP address, rarely much more, but with that and a little investigative luck, sometimes the identity of the user can be determined. And a lawsuit gets filed."

There are posters stating you can hide via various methods but I find it highly unlikely that our Government hasn't gotten a Backdoor to each and every one mentioned. It also begs the question that posters should be just as wary of posters that feel a need to diss and hide behind countless clones and ip addresses.

Free Speech should be protected and suing folks for expressing a viewpoint seems to be going way overboard. However, on the Flip-side, what protects business owners from folks who may lie about their actual experience with a Business? It's darn if you do and darn if you don't. Bottom line, there needs to Clear and Concise Rules about posting on the WEB. There also needs to be limits on just how far the Government can spy on it's on Citizens. Bad players however make it difficult for everyone.

Mar 7, 2014 3:01PM
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I like every business.
Oops, should I have said love, or something else?

Mar 7, 2014 6:06PM
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I wrote a bad review of a restaurant this past summer, trip advisor gave out my name and home town, and I ended up rescinding the review due to fear of retaliation by the lousy waiter...
Mar 9, 2014 6:08PM
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Nonsense crap service gets crap review this is another example of our courts meant to represent people siding with business over and over and over!  I pay no mind to judges in this country anymore they have no spine!
Mar 10, 2014 1:52PM
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Of all the review sites, Yelp is the WORST - they are a foreign owned company that tries to extort small business by 'filtering' out good reviews while allowing negative reviews to be seen (often times they are bogus negative reviews written by competitors)!  Then, a rep from Yelp calls you and tries to sell (extort) you for advertising with the implied promise the bogus negative reviews will go away....

Anyone that bothers to use Yelp or other reviews to make their decisions when purchasing are being misled and misinformed.  And if  you leave negative reviews that are undeserved, with the intention of doing a business harm, that is illegal and called slander in this country and you should be sued and held accountable!
Mar 9, 2014 1:46PM
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"Fri 5:22 PMShivanSwordsmanAs a consumer, this is pretty terrifying. No longer can they buy off reviewers, but now they can target anyone who talks bad about them and drag them into an expensive legal battle they could never hope to win. How the heck are you supposed to fight back, or have an opinion? The internet was supposed to be a way for the truth to get put forward"

Although I agree that's it's alarming what a business might do, it's just as alarming what consumers are doing. The internet has been a way for folks to give their version of the truth, that hardly makes it the actual Truth. It's true, I read and or saw it on the internet, Oh Really? The internet is full of far more fiction than FACT.
Mar 8, 2014 5:02PM
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Well, that's easy - just use a proxy IP when posting at these websites - than you can't be tracked!
Mar 9, 2014 12:50PM
Mar 8, 2014 11:42PM
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Look into using the Tor browser or go to Hidemyass.com .
Mar 9, 2014 12:56PM
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Do your dissing while using a VPN.  They won't be able to track your IP address that way.
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