A Lincoln City hotel lost its fight to hold an anonymous person liable for a scathing review on TripAdvisor.com that its owners worried was driving away business.
A Multnomah County Circuit judge said he would not compel the travel website to hand over the name of the commenter because -- just like traditional news organizations, such as newspapers and TV stations -- TripAdvisor is protected under Oregon's media shield law.
Judge Christopher Marshall's October ruling effectively killed the Ashley Inn's $74,500 defamation lawsuit against TripAdvisor reviewer, "12Kelly," who among other things, wrote that the 75-unit inn's "rooms are nasty." Because the Ashley Inn had no specific person to sue, the case was dismissed earlier this month.
Legal observers say Marshall’s ruling is significant and precedent-setting because it is among the first in Oregon and the nation to use media shield laws to protect the identities of anonymous Internet reviewers on such websites as TripAdvisor, Yelp, Google Reviews or Amazon.com.
The purpose of media shield laws -- enacted individually by most states -- is to protect a free press from being forced by the government or others to reveal the identity of its sources.
TripAdvisor's Portland attorney Duane Bosworth argued that Oregon's media shield law is straightforward: It protects "any medium of communication" -- and that TripAdvisor is clearly just that. What's more, Bosworth said, the courts often refer to websites or the Internet in general as communication media.
Bosworth declined to speak to The Oregonian on Monday, but TripAdvisor spokeswoman Desiree Fish said the company was “pleased with the court’s ruling and its protection of consumer reviews.”
According to the Massachusetts-based company, users have posted more than 200 million reviews about lodgings, restaurants and attractions worldwide since the website's inception 14 years ago.
Ashley Inn’s attorneys argued that the state’s 1973 law was written long before TripAdvisor and other Internet-review sites existed. The inn’s attorneys said the only examples Oregon’s law gives as a “medium of communication” are newspapers, TV stations and other traditional news-gathering organizations.
“...Media shield laws are not intended to blanket the entire Internet in anonymity,” one of the inn’s attorneys wrote in a brief to the court.
Jeffrey Frasier, who represented the inn, told The Oregonian on Monday that the judge’s ruling is “disappointing because it leaves our client without a remedy. You can’t sue a ghost.”
The foundation for the suit, which was filed in May 2014, had already been set. In March 2014, the Oregon Court of Appeals for the first time took up the issue of whether Oregon business owners could sue people who post critical reviews on Yelp, Angie's List, Facebook or elsewhere. The appeals court said the owners of a Eugene-area outdoor wedding venue could sue a wedding guest who posted a Google Review that included a statement about it being, "The worst experience of my life!"
The Ashley Inn faced another big hurdle on top of the issue of 12Kelly's identity. The hotel's owners would have had to prove that 12Kelly maliciously posted the review to hurt the business, knowing that it contained false information.
The April 23, 2014, review about the inn stated that “laundry and housekeeping are either high or drunk” and “breakfast is nasty, the rooms are nasty.” The review also claimed that “the owner smokes weed” and “Jen front desk had phone sex with someone.”
The review has since been taken down.
Frasier said the hotel's owners believed strongly that the statements were false. He said the owners also thought that 12Kelly hadn’t actually stayed at the hotel: 12Kelly’s review states that he or she stayed at the inn in March 2014 and was from Prescott, Arizona, but the owners found that no such person had registered as a hotel guest.
Frasier pointed to troubles the website has faced overseas. Last week, Italian regulators fined TripAdvisor about $611,000 -- saying it presented all of its postings as "authentic and genuine in nature" and failed to establish proper checks to weed out bogus reviews.
TripAdvisor -- which claims to be the world’s biggest travel website -- issued a statement that it was “a force of good” for both consumers and the hospitality industry.
-- Aimee Green