17 Apr 2014

Martin Clark and Another v Trip Advisor: Guesthouse Owners Unable to Sue Authors of Online Reviews

Martin Clark and Another v Trip Advisor: Guesthouse Owners Unable to Sue Authors of Online Reviews

Alastair Johnston, Trainee Solicitor, examines a recent case which considered the power of courts in Scotland to order foreign companies to disclose the identities of authors of online reviews.

Owners of a highland guesthouse sought to obtain information which would allow them to sue the authors of an unfavourable, and allegedly defamatory, online review of their hotel. However, their case was dismissed by the Court of Session as the Court decided that it did not have jurisdiction to hear the case. 

The owners of the guesthouse sought to use Scottish Legislation, the Administration of Justice (Scotland) Act 1972, to obtain information about the authors of the reviews. This legislation empowers Scottish Courts to order the inspection of documents and other property in relation to civil actions which have been raised in Scotland or will be raised imminently. 

The owners argued that the comments placed on the website during 2012 led to a loss which occurred in Scotland. In order to raise action against the authors of the review the owners would first require further details about the authors. Accordingly the owners raised an action in the Court of Session requesting that the US-based company, Trip Advisor, be ordered to disclose the names and addresses of the authors of the reviews. 

Trip Advisor refused to provide this information and stated that as the Massachusetts-based company had no place of business within the UK they could not be sued in any Court within the UK. Furthermore, Trip Advisor advised that all those who registered their hotels on their website agreed to accept their terms of business, which included a clause stating that the courts of Massachusetts had exclusive jurisdiction.

The Court decided that it did not matter whether people in Scotland could access the information but rather where the holder of that information was based, in this case America. In the circumstances the Court refused to establish a precedent where it would have “global jurisdiction” and described any such notion as “misconceived”. Accordingly the Court ruled that the legislation relied upon by the owners did not empower the Court of Session with worldwide jurisdiction. 

As a result the Court did not have jurisdiction in relation to the case against Trip Advisor which meant it would not be possible to raise an action against the authors of the review and therefore the legislation could not be used in this instance. 

This case emphasises the importance of reading the terms of business of any contract especially in a digital age where many people use the services of company based overseas, often without realisation.

Read the full case report at http://www.scotcourts.gov.uk/opinions/2014CSOH20.html

Alastair Johnston, Trainee Solicitor

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