Mr and Mrs Clark own a guesthouse in Kinlochleven on the popular West Highland Way Walking Route. In 2012 two negative reviews appeared on TripAdvisor. The Clarks were upset with the contents of these reviews. They believed that the events which they described were fictional and defamatory.
Other than the authors’ made up usernames (“Edna B” and “dreckit”) the Clarks did not know the identities or precise whereabouts of the authors. Clearly not aware of the Streisand Effect the Clarks raised proceedings against TripAdvisor at the Court of Session in Edinburgh for orders compelling the website to disclose to them real names and addresses of Edna B and dreckit. The Clarks then intended to raise proceedings against them for damages on the basis that the reviews were defamatory.
The identities of the reviewers were held by TripAdvisor LLC, an American company. TripAdvisor has no physical presence in Scotland, or the UK for that matter. The TripAdvisor terms and conditions, which the Clarks had signed up to by creating a page on the website for their guesthouse, stated that any dispute between registered users and TripAdvisor would be governed by the law of the state of Massachusetts where Trip Advisor was registered.
The Clarks’ Position
The Clarks’ intention was to get an order in Scotland. The Clarks’ view was that the Court of Session had jurisdiction to make such an order on the basis that this application was ancillary in nature to their “real” action i.e. the action in damages against the authors of the defamatory reviews. The court would undoubtedly have jurisdiction to hear this complaint and as such it should follow that the Court has the power to make an order to compel TripAdvisor to release the identities of the reviewers as well. The practical issue of whether such an order could be enforced in Scotland was not of the Court’s concern. The Clarks believed the granting of the order alone would be enough for TripAdvisor to release the information they sought or that it could be used as a basis of a second action in Massachusetts.
TripAdvisor defended the action on the basis that there was no jurisdiction. TripAdvisor has no physical presence in the UK and furthermore the Court of Session did not have the power to make any orders of this kind against parties located out with Scotland. Furthermore the Clarks had agreed to TripAdvisor’s terms and conditions. Any dispute with TripAdvisor would have to be brought in Massachusetts.
The Initial Judgement
In the first instance the Court found that it did not have the territorial scope to make the orders the Clarks sought. The Court of Session could not make an order of this kind against a party located in Massachusetts. The Court also held that TripAdvisor’s terms and conditions were clear to the extent that any action against the company would have to be brought in Massachusetts.
The Appeal and its Implications
The Clerks attempted to appeal this decision. Their appeal was unsuccessful. The Inner House of the Court of Session agreed with the original judgement on the same two fronts.
The implications of this appeal are not good for those in Scotland who are victims of online defamation on foreign websites like TripAdvisor. As such a potential litigant is Scotland would have to look at raising proceedings in the jurisdiction where the company hosting the defamatory comments is based, even if they had the right to raise the action for defamation in Scotland (on the basis of Scotland being the place where the damage took place).
The law in this area in Scotland is somewhat behind than in the rest of the UK. In England the position is quite different. A third party that host information, commonly an independent service provider, can be held liable for defamation in the event that it is either unable or unwilling to provide the aggrieved party with the details of the person who made the defamatory statement which they are hosting.
As such issues surrounding jurisdiction would have to be carefully considered by anyone in Scotland who has had anonymous and defamatory statements posted about them or their business online and who wishes to take action against the authors.
Iain McDougall, Senior Solicitor
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