The court has now refused the request for an order to release the identities of the people who posted the reviews. TripAdvisor are based in the USA, so the information about the identities of these people is technically held in the USA. The Scottish courts did not have jurisdiction, so could not pronounce an order which ordained TripAdvisor to release information which is held abroad.
The court also considered the terms and conditions of the TripAdvisor website. They clearly state that any disputes are to be resolved by the courts of the US State of Massachusetts. Given this, the Scottish courts did not have jurisdiction to deal with the case.
Most businesses in the hospitality and tourism sector want to be listed on TripAdvisor. As a massive database of travel information, it is a powerful marketing tool, particularly for those businesses who get positive reviews. But where does this leave businesses who are disgruntled by negative reviews? TripAdvisor has processes for managing disputes, for example through reporting of suspected fraudulent reviews and blackmail reviews. If the comments made are defamatory, provided you know the identity of the poster of the comment, you could raise an action of defamation against them, seeking both that the comment is removed and damages for any losses sustained.If you don’t know the identity of the party who posted the comment, it will not be possible to recover their details through court action in Scotland. Business owners who are faced with this dilemma, like the Clarks were, would have to raise court proceedings in Massachusetts against TripAdvisor to identify who it is who has defamed them online.Of course, other review-based websites will be hosted in different locations and have different terms and conditions.
The moral of the story here is that businesses in the tourist industry have to weigh up the risks of appearing on sites such as TripAdvisor. On the one hand, it can be a great tool to advertise a business. On the other, it can be tricky to deal with any anonymous comments, as the Clarks are discovering to their detriment.