The fine for leaving a bad TripAdvisor review – is it legal?
A Blackpool hotel recently came under scrutiny for ‘fining’ a couple £100 for posting a critical review on the TripAdvisor website. The couple described the hotel as a “rotten, stinking hovel” in the review, and the hotel responded by claiming that the review was in breach of a ‘no bad review’ clause in their terms and conditions. After a fierce public response – and an investigation by Trading Standards – the hotel made the decision to refund the couple; however in this article we will discuss whether this kind of clause is legally acceptable.
The No Bad Review Clause
The couple stayed for one night at the hotel and paid £36 for a double room. Unfortunately they were unaware that they had unsuspectingly signed a contract which specified that any harsh reviews would be susceptible to a £100 fine per review. The clause relied upon by the hotel – located in the small print of the booking form – stated:
“No Bad Review Policy: Despite the fact that repeat customers and couples love our hotel, your friends and family may not. For every bad review left on any website, the group organiser will be charged a maximum £100 per review.”
The law seeks to safeguard consumers from unfair commercial practices and unfair contracts. Examples of commercial practices could include the way a business sells, and any marketing, advertising or inducements made to customers.
The Unfair Terms in Consumer Contracts Regulations 1999 (“the Regulations”) is the main legislation covering this area, and aims to ensure that traders and businesses operate in a manner that is honourable and open, whilst also providing customers with all the information they require to make informed purchases. By setting up a penalty with the purpose of dissuading customers from publishing critical reviews, the hotel was arguably being dishonest with its future customers; thus, it is very likely that this procedure could lead to the hotel being in breach of the Regulations.
In addition, the Regulations also protect consumers from unfair terms in contracts. Terms that cause ‘a significant imbalance in the parties’ rights and obligations, to the detriment of the consumer’ will be held to be void, and one of the considerations to take into account in this determination is whether a term is consistent with the ‘good standards of commercial morality and practice’ – ‘silencing’ clauses such as the one used in this case may very well not be.
Putting the Regulations to one side for a moment, the European Convention on Human Rights encompasses a right to freedom of speech, and English defamation law acknowledges this important right. The well-known defence of ‘honest opinion’ to defamatory statements (such as the defamatory statements made by the couple in this case) would almost certainly apply to cases such as this, whereby customers are simply providing a truthful opinion on the service they have received. Unfair contract terms legislation will undoubtedly be applied ordinarily with these principles.
This case is an example of the Streisand effect: an effort to obstruct negative publicity, which ultimately attracts far more attention to the situation than the original criticism itself. One may ask whether efforts would perhaps be far better made on improving the consumer experience of the service provided, rather than incorporating punitive and strict contractual clauses that seek to restrict an individual’s freedom of speech, and may well be held to be in breach of the Regulations, and thus the law, anyway.
After all, the customer is always right!