Can you be sued for your online travel reviews? Here's how to protect yourself
Unpack, do laundry, leave a couple of Yelp or TripAdvisor reviews.
This is a familiar routine for many frequent travelers after returning from a trip. In a world where we broadcast every last detail about our vacations on social media, leaving an online review about a hotel, activity or restaurant often feels like part of that same process.
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User-generated content has taken the internet by storm in the past several years. Yelp, TripAdvisor and Facebook are some of the most common places where travelers write and consume reviews. But the opportunities to sound off about travel experiences both bad and good are endless, including Reddit, blogs and speciality online forums from FlyerTalk to DisBoards.
But just how careful should you as a reviewer be about what you say? Can your words land you in legal trouble when they're negative? Some travelers have been on the receiving end of legal threats and lawsuits for what they've written on review sites. Should you be worried too? Is there anything you can you do to protect yourself?
Can someone really sue me for an online review?
The short answer to whether you can be sued for your online travel reviews is, of course, yes. You can be sued for just about anything. The barrier to entry for lawsuits in the United States is pretty low. There are several widely publicized legal disputes involving online travel reviews, from a Branson, Missouri tourist attraction suing a customer for a TripAdvisor rating to a hotel in Indiana that tried to charge $350 to a customer who left a negative review.
Whether a lawsuit has any legal merit is, of course, the real question. Attorney Jamie Lieberman of Hashtag Legal, a law firm focused on providing legal services for the digital world, advises that even when a reviewer is engaged in legally protected behavior, "it may not stop a business from suing or trying to stop a consumer from posting a negative review." It takes time and money to make even the most frivolous of lawsuits go away. "In many states, the consumer is left responsible for legal fees for defending themselves, even if the reviewer was within their rights," Lieberman warns.
Related: TripAdvisor wants to be Facebook for travelers
What can reviewers do that might put them legally in the wrong? The answer is pretty simple: not telling the truth. The most common legal claim that a business might have against a customer leaving an online review is defamation. Emily D. Baker, an attorney who counsels online business owners navigating legal issues in the digital space said, "Defamation is governed state to state, but is broadly a public false statement that is intended to or does, in fact, cause injury (such as loss of business or reputation)."
In the United States at least, truth is a defense to defamation.
When writing negative online reviews, the best way to remain on the right side of the law is to simply be honest. Reviewers can do this most effectively when they stick to the facts. Explain what happened that caused you to give a business a low rating, such as visibly dirty bed sheets at a hotel or a restaurant that took over an hour to bring an order to your table.
Avoid jumping to conclusions or offering opinion. Just because you woke up with mysterious bites on your legs doesn't necessarily mean your hotel is infested with bed bugs. Instead of saying, "This hotel is swarming with bed bugs" when you never saw an insect, say the following: "I woke up the first morning of our stay with 10 bites on my legs. I informed the hotel manager. I asked for an inspection of my room by an exterminator and requested a new room. He refused both requests." Let the readers of a review come to their own conclusions from the facts as you've presented them.
Related: Reality bites: Do hotels have to notify guests about bed bug incidents?
It's also wise to avoid personal attacks. "Reviews that call names, question someone’s mental stability or are abusive, harassing or clearly intended to drive business away are a concern," said Baker. So, dial back the use of terms like "liar" or "crook." It might feel nice to vent after a bad customer service experience, but it could get you into hot water.
How can I minimize my risk when writing online reviews?
Other than telling the truth and avoiding harassing language or opinion, what else can you do to minimize the chances of legal payback? There are quite a few practical steps that can reduce that risk.
Handle reviews of small businesses with more care
Practically speaking, major corporations with millions of customers are not going to have their feelings hurt by your negative online review. So go ahead and bare your soul about how a hotel chain annoyed you, how you'll never fly an airline again or how In-N-Out Burger is the most overrated fast-food chain in America.
The likelihood these companies would ever sue a customer for a negative review are next to nothing.
Most companies that have gone after customers for leaving negative reviews are smaller Mom-and-Pop shops. These might include bed and breakfast owners; property owners who rent lodging on Airbnb, Vrbo or HomeAway; or small local restaurants and tour operators. Sometimes these businesses aren't incredibly sophisticated when it comes to the online world. More often, they are simply run by real people who have devoted their lives to the endeavor and can't separate emotion from business.
Before you leave a scathing review for a small business, be sure the situation warrants it. And make sure you consider that there is a human being on the receiving end.
Attempt to address problems before you leave a review
Often there's a disconnect between travelers and the businesses they're reviewing because of a lack of communication about problems. Unless you make your complaints known while you're traveling, the business owner often has no idea, and no chance to rectify the situation. When you later leave a negative review, they may feel they've been unfairly treated.
So, speak up about problems! Ask for a different hotel room if yours is noisy, or send a dish back if it's undercooked. Give the business owner a chance to potentially wow you with a customer service turnaround. If the business doubles down on the problem, then you have that much more factual fodder with which to warn future travelers.
Related: How to ‘play nice’ with airlines to get what you want
Read those contracts!
In a world where a negative online review can make or break a business, some businesses have tried to take additional contractual steps to protect themselves beyond the protections of defamation law. Before you sign anything in your travels, read the fine print.
At least a few companies have included nondisparagement clauses in the contracts they send customers, trying to stifle customer speech before someone ever checks in. In response to this practice, Congress passed the Consumer Review Fairness Act (CRFA) in 2016. The Federal Trade Commission advises that this law "protects people’s ability to share their honest opinions about a business’s products, services or conduct, in any forum, including social media."
This law almost assuredly makes nondisparagement clauses illegal and unenforceable. Attorney Baker suggests that customers could cross out the provision and initial it or could even ask for a copy of the agreement and report it to the FTC if they choose.
Travelers might also be smart avoiding doing business with a company that has a provision like this in its customer contract. The fact that a company has gone out of its way to include something like this in its fine print is a red flag. It signals a super-sensitivity about negative reviews and a hostility to customer feedback. Find another place to stay or tour operator with whom to do business.
What to do if you receive legal threats for your online reviews
Even if careful and truthful, some consumers will encounter legal troubles for their negative online reviews. But you probably shouldn't let that make you shy away from doing it. If you are someone who enjoys writing reviews and finds value in reading reviews left by other travelers, the very small risk is likely worth it, especially if you take a few reasonable precautions.
Related: What to ask for when things go wrong on your flight
If by chance you do find yourself the unlucky recipient of a cease and desist letter (or worse, a summons for an already-filed lawsuit), find an experienced attorney as soon as you can. Don't try to handle these kinds of disputes yourself. There also may be organizations in your area that can help with no- or low-cost legal assistance, especially when there are First Amendment implications to the lawsuit.
Disclaimer: This article does not constitute legal advice. Always consult a licensed attorney about your specific legal situation.