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Australian Restaurant Taking Legal Action Against TripAdvisor

Australian Restaurant Taking Legal Action Against TripAdvisor

The restaurateur claims the negative reviews are hurting her otherwise solid reputation

Yelp might be getting all the flak in terms of awful reviewers with nothing to contribute (other than Stefan K., obviously), but fellow user-review site TripAdvisor might just be a bit worse.

A restaurateur in Australia has threatened to pursue legal action against TripAdvisor after the company refused to take down her restaurant's listing after it changed ownership.

Claire Rampling, the restaurateur, complained that there is one negative review on the site, while the rest are positive, which could destroy her business and reputation. The negative comment called her a "stressed out *****," saying the food was so bad they'd 'rather go to KFC,'" The Australian reports.

Meanwhile, TripAdvisor has recommended that owners contact the company if they are being blackmailed, but will not remove listings at management's requests. Owners should respond to negative reviews on their businesses' sites instead, a representative said.

Of course, this is following an announcement from the Accommodation Association of Australia back in August that said TripAdvisor reviews were found to be "subjective, inaccurate, and inclusive of malicious content some of which aren't even relevant to the property they were applied to." In fact, back in February the Advertising Standards Authority ruled that TripAdvisor can no longer claim that their reviews are "trusted."

Rampling, in the meantime, hopes that eventually review sites will ask reviewers to prove that they dined at the restaurant. Good luck with that; she might be better off recording them in a fake accent and playing them over bathroom speakers.


Businesses can actually sue you for posting negative reviews – and now Congress is fighting back

Clay Calvert does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Partners

University of Florida provides funding as a founding partner of The Conversation US.

The Conversation UK receives funding from these organisations

In late September, the Federal Trade Commission (FTC) filed a complaint against two marketers of weight-loss supplements – Roca Labs, Inc and Roca Labs Nutraceutical USA, Inc.

According to the FTC, Roca Labs, Inc “allegedly made baseless claims for their products, and then threatened to enforce ‘gag clause’ provisions against consumers to stop them from posting negative reviews and testimonials online.”

The gag clause that the FTC refers to – in which customers unwittingly sign away their rights to post online reviews after making a purchase – is becoming increasingly common. And it’s only one of several strategies that companies have used to suppress negative reviews of their products.

A bill that’s picking up steam in the US Senate – the Consumer Review Freedom Act – directly addresses these gag clauses. But while it represents a step in the right direction, the bill fails to address other shady practices of the online review industry.


TripAdvisor defends itself in fake reviews row

The travel review site has come under fire from consumer group Which? over what it calls "hugely suspicious" patterns of comments from contributors.

But James Kay, a UK director of TripAdvisor, said the site went after fake reviews "very aggressively".

"We are doing this more than any other platform out there," he told the BBC.

Mr Kay was speaking in response to a Which? Travel survey that looked at 250,000 TripAdvisor reviews for the top 10 ranked hotels in 10 popular tourist destinations worldwide.

Which? said it had reported 15 of those 100 hotels to TripAdvisor as having "blatant hallmarks" of fake reviews.

It said that in the case of one hotel in Jordan, TripAdvisor subsequently removed 730 of its five-star reviews.

Naomi Leach of Which? Travel accused TripAdvisor of a "failure to stop fake reviews and take strong action against hotels that abuse the system".

"Platforms like TripAdvisor should be more responsible for the information presented to consumers."

But TripAdvisor's Mr Kay said the site had already taken action against the reviews in question, independently of the Which? investigation.

"This is something we do every day," he said. "We have fraud detection tools that are far more sophisticated than those used by Which?"

Mr Kay said its investigators were always on the lookout for suspicious patterns of reviews.

In Italy, he added, TripAdvisor had assisted a prosecution that sent one fake reviewer to jail.

Under an EU directive that has been in force in the UK since 2008, hotel staff who post favourable reviews of their establishment on travel information websites such as TripAdvisor are committing a crime.

Any firm breaking the rules may face prosecution, stiff fines and possibly even jail terms for its staff.


Dana White threatens to take legal action against Jake Paul and tells him to ‘fight a f***ing boxer’ instead of UFC star

DANA WHITE has threatened Jake Paul with legal action if the YouTuber tries to pursue a boxing match with an active UFC fighter.

The former Disney star has campaigned for fights with Nate Diaz and Dustin Poirier following his one-minute demolition of retired MMA star Ben Askren last weekend.

UFC supremo White has grown tired of seeing the social media star pursue bouts with his fighters, telling Paul via Yahoo Sports: “Why don’t you go fight a f****g boxer?"

“What the fuck do these guys keep talking to UFC guys for?

"I’m gonna have to slap them with another f****g legal letter, these fucking idiots.

"Go talk to f****g boxers. What are you doing?”

White isn't a fan of YouTubers competing as professional fighters and believes the popularity of the fights is a sign of how far boxing has fallen.

He said: “Boxing continues to go like this [points his hands downward].

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"This guy [Jake Paul] is playing this thing perfectly and boxing’s in such a bad place.

"They’re doing a really good job at sucking in people to buy into this thing. Good for him."

In the build-up to Paul vs Askren, a confident White revealed heɽ be willing to bet $1million on the latter beating the YouTuber turned boxer.


What's the backstory?

Mr Barnes, who works in Thailand, had stayed in the Sea View resort earlier this year.

He is said to have got into an argument with staff over him wanting to bring his own bottle of alcohol while dining in the restaurant.

A hotel statement said he had "caused a commotion" and refused to pay a corkage fee which was eventually waived when the manager intervened.

After leaving, Mr Barnes posted a negative review of the property on TripAdvisor, after which the hotel sued him for defamation, leading to his arrest in September.

He was facing up to two years in jail.

The hotel alleged that his review was "fabricated, recurrent, and malicious".

Mr Barnes has said he lost his job over the incident and expressed concerns that the publicity his case had received would make it harder to find new employment.

The hotel said that after several negative reviews had been published, it had received cancellations and inquiries about employee treatment.

The case was eventually dropped after the American apologised for "repeatedly false and untrue statements. made to maliciously defame Sea View. These reviews were written out of anger and malice".


Know your rights: Racial discrimination and vilification

Racial discrimination is when a person is treated less favourably than another person in a similar situation because of their race, colour, descent, national or ethnic origin or immigrant status.

For example, it would be ‘direct discrimination’ if a real estate agent refuses to rent a house to a person because they are of a particular racial background or skin colour.

It is also racial discrimination when there is a rule or policy that is the same for everyone but has an unfair effect on people of a particular race, colour, descent, national or ethnic origin or immigrant status.

This is called ‘indirect discrimination’.

For example, it may be indirect racial discrimination if a company says that employees must not wear hats or other headwear at work, as this is likely to have an unfair effect on people from some racial/ethnic backgrounds.

What is racial hatred or racial vilification?

Racial hatred (sometimes referred to as vilification) is doing something in public based on the race, colour, national or ethnic origin of a person or group of people which is likely to offend, insult, humiliate or intimidate.

Examples of racial hatred may include:

  • racially offensive material on the internet, including eforums, blogs, social networking sites and video sharing sites
  • racially offensive comments or images in a newspaper, magazine or other publication such as a leaflet or flyer
  • racially offensive speeches at a public rally
  • racially abusive comments in a public place, such as a shop, workplace, park, on public transport or at school
  • racially abusive comments at sporting events by players, spectators, coaches or officials.

How am I protected from racial discrimination and racial hatred?

The Racial Discrimination Act aims to ensure that Australians of all backgrounds are treated equally and have the same opportunities.

This Act makes it against the law to treat you unfairly, or to discriminate against you, on the grounds of race, colour, descent, national or ethnic origin, and immigration status.

The Act also makes racial hatred against the law.

The Act gives effect to Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, to which Australia is committed.

What does the Racial Discrimination Act do?

The Act protects you against discrimination in many areas of public life, including:

  • employment – getting a job, terms and conditions of a job, training, promotion, being dismissed
  • education – enrolling or studying in a course at a private or public school, college or university
  • accommodation – renting or buying a house or unit
  • getting or using services – such as banking and insurance services, services provided by government departments, transport or telecommunication services, professional services like those provided by lawyers, doctors or tradespeople, services provided by restaurants, shops or entertainment venues
  • accessing public places – such as parks, government offices, restaurants, hotels or shopping centres.

The Act also protects you if you are harassed because of your race.

What about discrimination and harassment at work?

The Racial Discrimination Act covers situations where you feel that, because of your race, you have been:

  • refused employment
  • dismissed
  • denied a promotion, transfer or other employment-related benefits
  • given less favourable terms or conditions of employment
  • denied equal access to training opportunities
  • selected for redundancy
  • harassed.

It doesn’t matter if you are applying for a job, are an apprentice or trainee, on probation, work part-time or full-time, or if you are a casual or permanent employee – you are protected by the Act.

The law covers all types of employers, including: the Commonwealth and state governments the private sector as well as contract and commission-based work and recruitment and employment agencies.

Employers have a legal responsibility to take all reasonable steps to prevent racial discrimination and should have policies and programs in place to prevent racial discrimination in the workplace.

A Maori man, working for a building company claimed that his co-workers used offensive terms, such as ‘blacks’ and ‘niggers’, in his presence.

He made a complaint to the company director which led to his co-workers refusing to work with him. This led to him being made a casual, and eventually, not being offered any more work by his boss.

Through conciliation, the company agreed to pay the man financial compensation, provide him with a written reference and arrange anti-discrimination training for company staff.

When is racial hatred not against the law?

The Racial Discrimination Act aims to strike a balance between the right to communicate freely (‘freedom of speech’) and the right to live free from racial hatred or vilification.

To strike this balance, the Act outlines some things that are not against the law, provided they are ‘done reasonably and in good faith’ - even if they are done in public.
Under the Act, the things that are not against the law if they are “done reasonably and in good faith” are:

  • an artistic work or performance – for example, a play in which racially offensive attitudes are expressed by a character.
  • a statement, publication, discussion or debate made for genuine academic or scientific purposes – for example, discussing and debating public policy such as immigration, multiculturalism or special measures for particular groups.
  • making a fair and accurate report on a matter of public interest – for example, a fair report in a newspaper about racially offensive conduct.
  • making a fair comment, if the comment is an expression of a person’s genuine belief.

A woman from El Salvador said she was harassed and bullied by a co-worker during her employment with an organisation.

She said she raised her concerns with management and was told "you are being too emotional - this is because you are from South America". The woman’s position was subsequently made redundant and she alleged that this constituted racial discrimination.

The organisation acknowledged that the woman had a dispute with a colleague and had complained to management. The organisation denied that comments connected to the woman's ethnic background were made as alleged. The organisation said the redundancy was due to a genuine restructure.

The complaint was resolved through conciliation with an agreement that the organisation would provide the woman with a Statement of Regret and financial compensation. The organisation also agreed to have staff complete anti-discrimination training within 6 months of the conciliation conference.

What can I do if I experience discrimination or racial hatred?

You may want to deal with the situation yourself by raising it directly with the person or people involved or with a supervisor, manager or discrimination/harassment contact officer.

Making a complaint to the Commission

If this does not resolve the situation, or you do not feel comfortable doing this, you can make a complaint to the Australian Human Rights Commission. You can also have someone such as a solicitor, advocate or trade union make a complaint on your behalf.

It does not cost anything to make a complaint to the Commission.

Your complaint needs to be put in writing. The Commission has a complaint form that you can fill in and post or fax to us or you can lodge a complaint online at our website. If you are not able to put your complaint in writing, we can help you with this.

The complaint should say what happened, when and where it happened and who was involved. A complaint can be made in any language. If you need a translator or interpreter, we can arrange this for you.

A Kenyan man was told by a real estate company that he was required to vacate the premises he rented from them.

He claimed that, even though he had negotiated a date on which he would vacate the premises, the company changed the locks on the unit without telling him. He also claimed that when he went to the unit to collect his property, he was racially abused by the company director’s family member.

The company agreed that it had changed the locks on the unit but said that it only did this because the man’s rent was in arrears. The company director’s family member also denied racially abusing the man.

The complaint was conciliated, with the individual family member agreeing to pay the man financial compensation and attend anti-discrimination training.

What will happen with my complaint?

When the Commission receives a complaint about something that is covered by the Racial Discrimination Act, the President of the Commission can investigate the complaint and try to resolve it by conciliation.

The Commission is not a court and cannot determine that discrimination has happened. The Commission’s role is to get both sides of the story and help those involved resolve the complaint. Commission staff may contact you to get further information about your complaint.

Generally, the Commission will tell the person or organisation the complaint is against (the respondent) about your complaint and give them a copy of the complaint. The Commission may ask the respondent for specific information or a detailed response to your complaint.

Where appropriate, the Commission will invite you to participate in conciliation. Conciliation is an informal process that allows you and the respondent to talk about the issues and try to find a way to resolve the complaint.

If your complaint is not resolved or it is discontinued for another reason, you can take your complaint to the Federal Court of Australia or the Federal Magistrates Court.

What can I do to prevent discrimination?

Everyone has a role to play to help ensure that people from diverse cultures and backgrounds have the same opportunities as other Australians to participate in the political, economic and social life of our communities by letting us know what is happening.

The Commission undertakes a wide range of activities to build awareness about the rights and responsibilities that individuals and organisations have under the Racial Discrimination Act.

There is also a major focus on undertaking research and education projects to tackle racism and promote greater understanding between people of different cultures and backgrounds.

Projects have included national consultations, conferences, community forums and online forums.

The Commission has developed resources to assist sporting organisations and employers respond to and benefit from cultural diversity. Education resources have also been developed for schools and communities.

You can find out more about what we’re doing by visiting:
www.humanrights.gov.au/racial_discrimination

National Anti-Racism Partnership and Strategy

In February 2011, the Commonwealth Government announced Australia’s new multicultural policy, The People of Australia.

A key component of the policy was the establishment of a new national partnership to develop and implement a comprehensive National Anti-Racism Strategy for Australia.

The Race Discrimination Commissioner is leading the development and delivery of the National Anti-Racism Partnership and Strategy, and a Secretariat has been established within the Australian Human Rights Commission.

Where can I get more information?

The Australian Human Rights Commission’s contact details are:

Postal Address
Australian Human Rights Commission
GPO Box 5218
Sydney NSW 2001
Street address: Level 3, 175 Pitt Street
Sydney NSW 2000

Phone: (02) 9284 9600 or 1300 369 711
TTY: 1800 620 241 (toll free)
Fax: (02) 9284 9611
Email: [email protected]

Complaints

If you need an Auslan interpreter, the Commission can arrange this for you.

If you are blind or have a vision impairment, the Commission can provide information in alternative
formats on request.

Other contact points for racial hatred complaints

If you are concerned about offensive media stories, broadcasts or online content, you can complain to the Australian Communications and Media Authority (ACMA) the Advertising Standards Board for advertisements or the Australian Press Council for newspaper stories.

You can also complain to the Editor or Manager of the particular media organisation involved.
If you are concerned about offensive behaviour by neighbours, you can approach a Community Justice Centre to help resolve the problem, or the Department of Housing if you live in public housing.

If you are threatened with violence or violently attacked you should go to the police.

General legal advice

If you are thinking about making a complaint, you might also want to consider obtaining legal advice or contacting your trade union.


This section provides a brief overview of some other countries' laws as at December 2001. It does not cover any changes that may have been made to the laws since that date.

USA Defamation Laws and the First Amendment

From time to time, it is claimed that the USA First Amendment protects the speech of Americans to the extent that they can say anything they wish about another person without risk of a successful defamation action against them. However, the First Amendment does not protect all speech, for example, there is no constitutional protection for false statements of fact.

Defamation laws in the USA are significantly less restrictive of speech than the laws of most (probably all) other countries because the US First Amendment provides strong protection for freedom of speech. The rules governing when defamatory speech is actionable have been developed by the US Supreme Court primarily since 1964 (the New York Times Co. v. Sullivan case) and are complex.

In order for a statement to be defamatory under US laws it must be false (and how much of it is false is a relevant aspect). Whether a defamation action can succeed also depends on whether the speech is a statement of fact or an opinion (there are rules concerning what is an "opinion"). Generally speaking, pure opinions are protected, while factual assertions or opinions which imply an assertion of objective fact are actionable ( Milkovich v. Lorain Journal Co. , (1990)). There are also other factors relevant to when defamatory speech is actionable, including whether it is about a public or private figure and/or about a matter of public concern, etc.

  • A plaintiff who is a public official or a public figure is required to prove "actual malice", i.e. that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not ( New York Times Co. v. Sullivan , (1964) and a number of subsequent cases defining who is a public figure, etc).
  • A plaintiff who is a private figure is required to prove that a statement is false, and that the speaker engaged in some degree of negligence. The law varies among USA States as the States may define for themselves the appropriate standard of liability for private individuals ( Gertz v. Robert Welch Inc. , (1974)). They may adopt the "actual malice" standard, although most States have adopted a negligence standard, the definition of which varies among the States. (However, in cases involving matters of public concern, the "actual malice" standard is required by the First Amendment, regardless of whether the plaintiff is a public or private figure).

For more detailed information about US defamation laws and constitutional restrictions, see Basic Elements of Defamation Law by Greg Abbott, Attorney-At-Law, St Paul/Minneapolis.

A number of examples of USA defamation cases are summarised in Perkins Coie LLP's Internet Defamation Case Digests.

ISP/ICH liability

Section 230 of the USA Communications Decency Act 1996 ("the CDA"), often referred to as the "Good Samaritan" clause, immunises interactive computer service providers from liability as a publisher. (Although other parts of the CDA were struck down by the US Supreme Court, S230 was not). The relevant portion of S230 states:

The UK Defamation Act 1996 was intended, among other things, to clarify the defence of innocent dissemination for Internet service providers. Such provisions are contained in Section 1(1) and 1(3) of the Act:

1(1) In defamation proceedings a person has a defence if he shows that-
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
.

1(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved-
.
(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form
.
(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

The usefulness of these provisions appears questionable. As Lilian Edwards comments in Defamation and the Internet: Name Calling in Cyberspace :


Masks 'should be alternative'

In the Goodstart case, the employee had worked at the company's Gladstone centre for 14 years before she was told she had to have a flu vaccination unless she had a medical exemption that it was unsafe to do so.

She told the centre she was concerned about side effects as she had had an allergic reaction to the vaccine 11 years ago and had a history of chronic auto immune disease, which she claimed was healed only with the assistance of naturopaths and nutritionists.

She also argued the centre's policy was contrary to the health department's immunisation handbook that says free and informed consent must be given.

But the centre rejected her reasons as a valid exemption, including a medical certificate that attested to her sensitive immune system, and she was fired two months later.

Her lawyers' submissions say that mandating vaccination "fails the test of being an incapacity to perform inherent requirements of the position because the requirement is otherwise unlawful, unreasonable and amoral in that it is a requirement that employees consent to having a battery committed on their body to retain his/her employment".

Even communicating this requirement was a form of assault “because [Goodstart[ deliberately or recklessly caused the applicant to be in apprehension that [Goodstart] would arrange for her to be subject to a battery”.

They argued the educator's job was “essentially the same” with or without the flu vaccine and that the centre could have stipulated alternative measures such as wearing masks, greater social distancing and checking temperatures.

The educator also claimed three other staff members refused based on medical objections but were still working without a vaccine.


Your Right to Take Videos and Photographs

When in outdoor public spaces where you are legally present, you have the right to capture any image that is in plain view (see note below about sound recording). That includes pictures and videos of federal buildings, transportation facilities (including airports), and police officers.

  • When you are on private property, the property owner sets the rules about the taking of photographs or videos. If you disobey property owners' rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
  • Police should not order you to stop taking pictures or video. Under no circumstances should they demand that you delete your photographs or video.
  • Police officers may order citizens to cease activities that are truly interfering with legitimate law enforcement operations. In general, a court will trust an officer's judgment about what is "interfering" more than yours. So if an officer orders you to stand back, do so.
  • If the officer says he/she will arrest you if you continue to use your camera, in most circumstances it is better to put the camera away and call the ACLU for help, rather than risking arrest.
  • Police officers may not generally confiscate or demand to view your photographs or video or search the contents your cell phone without a warrant. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them). (Note: This section has been updated to reflect the June 2014 US Supreme Court decision in Riley v. California, in which the court held that police need a warrant to search a cellphone.)

Disclaimer FAQs

If you&rsquore looking for more answers, here are some frequently asked questions about disclaimers:

Do I Need a Disclaimer?

Yes, you need a disclaimer to protect your website against legal liability. Disclaimers inform users that your site will not be held responsible for any damages suffered from using your site.

For example, if you run a legal blog, a legal disclaimer will tell users that your content should not be taken as legal advice, and your site will not be held accountable for any legal actions the reader may take.

Whether you run an ecommerce site, blog, app, or general website, you need a disclaimer (or multiple disclaimers) to be transparent with users and protect yourself against legal claims.

Where Do I Put My Disclaimer?

Put your disclaimer where users can easily find it. You can put your disclaimer or disclaimers on a separate page, then link to that page in your website menu, website footer, or impressum page if you have one.

You should also put your disclaimers on relevant content. For example, if you promote an Amazon product in a blog post through the Amazon Affiliates program, you need to add an Amazon Affiliates disclaimer to that blog post.

What Types of Disclaimers Are There?

There are many types of disclaimers that address liabilities for different industries, activities, and content. The most common types of disclaimers are:

  1. Fair Use Disclaimer: A fair use disclaimer discloses that you are using copyrighted materials on your website lawfully and with the appropriate permissions.
  2. Warranty Disclaimer: Warranty disclaimers explain that sellers and service providers are not responsible for possible product or service failures.
  3. Copyright Disclaimer: A copyright disclaimer lets site visitors know that your site contains copyrighted material.
  4. No Responsibility Disclaimer: No responsibility disclaimers inform users that you are not responsible for the actions they take based on content found on your website.
  5. Confidentiality Disclaimer: Confidentiality disclaimers assure users that some content, such as contact information, is only intended to be seen by certain parties.
  6. Affiliate Disclaimer: Affiliate disclaimers disclose your participation in an affiliate program, such as Amazon Associates.
  7. YouTube Disclaimer: YouTube disclaimers are any disclaimer found in the video description of a YouTube video. Commonly, copyright disclaimers and no responsibility disclaimers double as YouTube disclaimers.
  8. Views Expressed Disclaimer: Views expressed disclaimers specify that the opinions found on your website are not the views or opinions of your business.
  9. Investment Disclaimer: An investment disclaimer informs readers that your investments commentary is information, and should not be taken as official investment advice.
  10. No Guarantee Disclaimer: No guarantee disclaimers announce that your website or business makes no promises about the results of a product or service.
  11. Use at Your Own Risk Disclaimer: Use at your own risk disclaimers instruct your site&rsquos visitors to act on your content or recommendations at their own risk.
  12. Email Disclaimer: An email disclaimer is any disclaimer added to the footer of an email. Most often, confidentiality disclaimers act as email disclaimers.
  13. Past Performance Disclaimer: Past performance disclaimers state that previous results do not equal future results.
  14. Medical Disclaimer: A medical disclaimer informs users that the content on the site is provided for informational purposes only, and does not substitute professional medical advice.

How Do I Write a Disclaimer?

You can write a disclaimer by modifying a disclaimer template to address any liabilities you have on your site.

Using a disclaimer template will make it easy for you to pick and choose the disclaimers that may apply to your website, and then customize those disclaimers to include any information unique to your site.

Additional FAQs

Written by Simon Fogg

Simon is a data privacy expert and legal analyst for Termly. He studies news and trends in the data privacy space, then brings compliance solutions to business owners and website operators.

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