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TripAdvisor - trefor.net

TripAdvisor

I’m not a lawyer. This is something of which I am proud. Nor am I a chartered accountant, this is something of which I am equally proud.

People that are in Regulatory Affairs (telecoms or otherwise) often individually present a real Heinz 57 of backgrounds, abilities and skills. As far as I am aware, no-one leaves school thinking “I want to be in Regulation!”. You sort of fall into it, from a carrier in the faculties of law, economics, accounting or the commercial arena – and have to be able to hold your own, at a high level, in all of them. In all cases, you need a desire and drive to get under the skin of the regulator and former incumbents alike; those that know me know I revel in this sort of protagonism.

Oh, and in case you’re wondering, I have an academic background in Finance and Management and a professional background in commercial affairs and compliance, hence my ultimate arrival in Regulatory Affairs. 18 year old Pete Farmer would’ve laughed if anyone suggested this is where I would end up.

So, this isn’t legal advice. It isn’t to be relied upon. It’s to be taken on an “as-is” basis as a way of stimulating debate and discussion around a subject of which I am as passionate about as annoying the Office of Communications; food.

Believe it or not, in my spare time I run a foodie blogging website (www.quantumleaps.org.uk) and have published a receipe book. This means I have had a great deal of priviledged outsider-looking-in exposure to the catering industry and I have thoroughly enjoyed giving some ad-hoc advice here and there in it.

One of the most worrying trends I have come across recently is the malicious TripAdvisor review. TripAdvisor are an American outfit, and absent any subsidiaries within the European Union that would be better exposed to the law of our land, are, prima facie, well guarded through their Terms of Business against claims against them as agents for publishing others’ reviews – though given how exlusionary they are, and asserts such exclusions onto entities that are not a party to the Terms of Business makes me wonder how enforceable it would be.

Anyway, that’s probably a debate for another time; TripAdvisor has a utility and, in one sense, can be held no more accountable for the consequences of their customers’ use of their tools as Smith & Wesson can.

But what about the reviewers? Specifically those that post defamatory, untrue, malicious reviews. These range from a blatant attempt to get freebies to the more sinister attempts to deliberately and maliciously denegrate an eatery through a “review” containing lies about their “experience”; be it former staff with a chip on their shoulder or, I am told, sometimes those “siding” with rivals. I have seen some of these first hand, and seen the effect it has had on the proprieters and staff of the targets of these malicious reviews. The effect can be easily likened to receiving a malcious phone call, I am sure.

Not one of them would argue if it were the truth; granted they would much rather have been told at the time so they could rectify the situation, but I have never met a restauranteur that didn’t want constructive feedback. Actually, that’s not true, there is one particularly arrogant and not as competent as he would like Eastern European proprietor of a Spanish restaurant (don’t ask) in Berkshire, but the vast majority welcome it.

All of us in the telecoms industry are familiar with malicious calls and texts; many of us have malicious calls bureaux that deal with our customers’ needs in this respect. Many of us may be familiar with the infamous Twitter Joke Trial (which was handled, along with the infamous Sally Bercow “innocent face” tweet by Prieskel and Co, a law firm well known to us in the industry and stand-up ITSPA member). Malicious calls, texts, and these tweets et cetera are prosecuted using Section 127 of the Communications Act 2003.

127 Improper use of public electronic communications network.

(1)A person is guilty of an offence if he— .

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or .
(b) causes any such message or matter to be so sent.

(2)A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a) sends by means of a public electronic communications network, a message that he knows to be false, .
(b) causes such a message to be sent; or .
(c) persistently makes use of a public electronic communications network. .

(3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. .
(4)Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)). .

I’ve added the emphasis to the key points. In essence, Section 127(2)(a) would suggest, to me, that the posting of a deliberately false review, using any of the telecommunications infrastructure within the United Kingdom (broadband and mobile networks are Public Electronic Communications Networks) comes with it the threat of 6 months in the gulag and a £5,000 fine. The good news for TripAdvisor is that I think they would have to be complicit to be caught by Section 127(2)(b), which I would suggest is rather unlikely until you hear of peoples’ experiences in trying to get such reviews removed – at which point, it is fair to say that arguments can be run they should be caught by it.

If people can be convicted (and thankfully, eventually acquitted in this case) for posting a joke about Robin Hood airport not getting it together in a snow storm, I think it is perhaps high time that the same law is used to tackle the actual menace of deliberate and malicious defamation of fine, upstanding proprietors of our favourite eateries; the revised English defamation laws, raise the hurdles for a successful case and, in a double whammy for restranteurs, is that companies have an even harder time of it, having to demonstrate “serious financial harm”. This very much seems like a neat shortcut in the face of that to justice.

I look forward to the first case – the only issue is that many I have spoken to fear doing it, even in the face of some of the most outright lies, in case they compound the reputational damage through what could be seen as a challenge to “free speech” – that, and as this article shows, a growing number of restauranteurs are fighting back with flair. Which reminds me, I need to compile a list of the best Management responses sometime!

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This article is dedicated to the person that inspired it; they know who they are!

Published by Peter Farmer

Peter Farmer is the Commercial and Regulatory Manager at Gamma, writing here on Trefor.Net in a personal capacity. He sits with Tref on the Internet Telephony Service Providers' Association Council and is their Chair of the Regulatory Affairs Committee. Peter's experience covers consultation responses and disputes with Ofcom, lobbying government (UK and European) on telecommunications matters, litigations at the Competition Appeal Tribunal, Court of Appeal and Supreme Court. Despite all of that, and having three Masters degrees, his main job is actually being a Personal Assistant to his two cats.

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  1. Trefor Davies

3 Comments

  1. I am not sure I would read this article again. The author is clearly intelligent but he peppered it with some copy and paste legal text that is not really appropriate for Sunday morning reading. What with this being Mothers day and sunny outside! Cheer me up please! I will never go to this page on the Internet again and I advise others not to come here either.

  2. Dan
    Never let it be said we at trefor.net don’t listen to our readers. Following your comment we had an emergency editorial meeting and did consider rescheduling this post to Monday morning. However when someone presses the “publish” button it is the signal for the post to get syndicated on many websites around the globe. On that basis the complexity of the recall would have been such that it would have taken us until Monday morning to get it all done anyway. Also I have better things to do with it, as you quite rightly point out, being Mother’s Day.

    As an alternative I will shortly put up a post with a large picture of a fire that I have been playing with this morning.

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