Guest-house couple fail to unmask online critics

Picture: TripAdvisor
Picture: TripAdvisor
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THE owners of a Highland guest house have failed in their bid to force travel site TripAdvisor to reveal details of contributors who left negative reviews.

Martin and Jacqui Clark applied to the Court of Session in Edinburgh for an order to disclose the names, addresses and other information they have on the identity of the authors so that they could sue for defamation.

Picture: TripAdvisor

Picture: TripAdvisor

The couple, who operate the Tigh-Na-Cheo guest house, at Kinlochleven, in Lochaber, maintain reports by ‘edna B’ and ‘dreckit’ were false and set out events that were fictional.

The review site challenged the move over its competency claiming that there was no jurisdiction.

Judge Paul Arthurson QC rejected the couple’s move yesterday following an earlier hearing.

The judge said that the piece of legislation under which the order was sought “does not empower the Court of Session with worldwide jurisdiction to ordain persons such as the respondents (TripAdvisor) to produce information”.

He said: “I conclude that the approach contended for on behalf of the petitioners (the Clarks) would require the court in turn to make a rather alarming entirely global assertion of jurisdiction.” The judge said that would be “wholly misconceived”.

“I further conclude that there is no basis at common law to support any proposition to the effect that there is a general jurisdiction to compel disclosure of information (or indeed documents) from a haver furth of Scotland,” he said.

TripAdvisor say that Mr Clark, when he registered with the site, awknowledged terms and conditions which included the caveat that claims against the online firm could only be heard in Massachusetts.

The judge said he had concluded that the proceedings the couple had raised through their petition fell within the scope of the jurisdiction clause.

The couple’s petition argued: “The postings purported to review events that did not take place. They were not reviews submitted by actual travellers.”

“It is said the reviews were submitted contrary to the rules of TripAdvisor and that the postings were not made contemporaneously.

“Both writers claimed to have visited the premises in September 2011, but the reviews did not appear until February and March the following year.

“It is alleged that the postings were made maliciously and that also “the reviews published were abuse or invective in the form of criticism”.

Graeme Henderson, counsel for the couple said they could plainly claim damages as individuals and for loss of business.

“Living in the real world there is a substantial claim for defamation,” he told the judge.

“Proceedings are more likely to be brought against the two writers than anyone else,” said Mr Henderson. A substantial number of guests using the premises were walkers on the West Highland Way.

“TripAdvisor effectively is the holder of information in a dispute of other parties. That is really TripAdvisor’s role in the dispute between the petitioners and the unknown posters,” he said.

Mr Henderson said: “We are not, as petitioners, pursuing TripAdvisor. All we are simply doing is seeking a court order for information.

“Provided a court has got jurisdiction to hear a case of defamation then I can ask the court to pronounce an order asking someone to disclose information. Whether it is enforceable or not is something I have to worry about at a later time,” he said

Paul O’Brien, counsel for the travel website firm, said that the company, while having offices in England, based its computer systems and business in the United States.

The court heard that no one in Scotland could legitimately access the information sought in the action.

He said that even to recover information from other parts of the UK the court would issue a request to a court in that part of the country.