The ACCC launched an unprecedented legal action
against Meriton Serviced Apartments for allegedly manipulating its
ratings and reviews on the Trip Advisor website.
The ACCC is arguing in the Federal Court of Australia that
Meriton's practice of selecting guests and prompting them to
complete a Trip Advisor review amounts to misleading or deceptive
While it is certainly unlawful for hoteliers to submit
fraudulent reviews on behalf of people who were never guests, or to
offer incentives for either positive reviews or removing
unfavourable reviews, this current case is testing whether it is
actually dishonest to select which customers to ask for their
We foresee potential difficulties with the argument the ACCC is
running because businesses have long been permitted to publish
testimonials and positive reviews without having to balance such
opinions by also publishing complaints. Selecting customers to ask
for a review does not seem very different to the common practice of
selecting only positive reviews to publish on a business's
website and screening out negative reviews. The distinction here
appears to be that the requested reviews are for the Trip Advisor
site and not the Hotel's own website, so it could be said
Meriton is exploiting the public perception of Trip Advisor ratings
and reviews as being unbiased. But does a perceived lack of bias
and independence also mean that the public believe or expect Trip
Advisor reviews are unsolicited or don't involve review
targeting by the businesses being reviewed?
The Trip Advisor website and its terms and conditions of use
reveals that it proactively combats fraud and maintains the
integrity of the reviews it receives. Its Content Integrity Policy notes:
"Unfortunately, we have seen
over our 15 years that some unscrupulous businesses will try to
cheat in order to attract more customers. We define
"cheating" as positively reviewing their own business (or
finding others to do so on their behalf) or negatively reviewing
Trip Advisor clearly does not consider only encouraging reviews
from guests who will provide positive reviews to be
"cheating". Trip Advisor discourages such practices by
providing the following advice to businesses:
"avoid selectively e-mailing
only the guests you believe will write positive reviews. Review
Express emails should be consistently sent to all
However it is not a Trip Advisor requirement that businesses
send prompt emails for reviews to all guests. Nowhere does Trip
Advisor hold out to the public that the reviews are unsolicited or
unselected by the businesses themselves.
The ACCC is no doubt bringing this action against Meriton
because the business of online reviews – especially in
relation to travel destinations - is big business and consumers are
clearly influenced to spend money at businesses that have received
a positive rating from other consumers via review sites like Trip
Investigation and/or criticism may have been more usefully
brought against Trip Advisor itself for not requiring that the
businesses it engages promise not to selectively solicit reviews.
It is Trip Advisor that advertises itself as an independent and
trusted source of accurate reviews for consumers while consumers
are used to businesses like Meriton promoting their satisfied
clients without mentioning their critics.
Interestingly the Trip Advisor website seems to have recently
removed any reference to the reviews it publishes as being
'unbiased' – and instead the language it is currently
using to promote its services has changed to focus on the reviews
being 'candid' or 'genuine'. However, when Trip
Advisor is inputted into the Google search engine the summary that
is displayed still claims the following:
"World's Largest Travel
Site. 385 million+ unbiased traveller reviews. ... possible
itineraries and finds you the lowest fares the most often of any
online flight finder."
The fine print in the Trip Advisor Terms
of Use includes extensive disclaimers including:
"TripAdvisor takes no
responsibility and assumes no liability for any Content posted,
stored or uploaded by you or any third party, or for any loss or
damage thereto, nor is TripAdvisor liable for any mistakes,
defamation, slander, libel, omissions, falsehoods, obscenity,
pornography or profanity you may encounter."
Despite the disclaimers there is no doubt that Trip Advisor
represents itself to consumers as a source of reliable information
about the quality of the businesses it publishes reviews about.
Where consumers are relying on those reviews money is necessarily
being directed away from one business toward another.
It appears arguable that it is Trip Advisor which has engaged in
misleading consumers by not clearly requiring hotels like the
Meriton to promise to send prompts for reviews to ALL of its
The public interest the ACCC no doubt believes it is serving by
policing the accuracy of online reviews would perhaps be better
served if it took aim at the large online review businesses like
Trip Advisor rather than making an example of one accommodation
We will wait to see whether the cost and effort of this ACCC
prosecution results in any real gains for consumers as we browse
online trying to avoid staying at sub-standard hotels.
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The Federal Court decision is likely to encourage the ACCC to maintain unconscionable conduct as an enforcement priority.
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