Recently, a court of first instance in Merida has condemned TripAdvisor
for storing comments harmful to the reputation of a hotel, forcing it to withdraw the defamatory comments that were detrimental to the honor of the accommodation, and to a compensation sentence, although in our opinion, contrary to the doctrine of the Supreme Court, in terms of granting compensation of a symbolic nature.
The disputed fact in the present trial was not whether the expressions themselves constituted an infringement of the honour of the Hotel, inasmuch as it is clear and indisputable that to state that there is a “horrible cafeteria, it is a fraud, you are being robbed”, “that the room was dirty, as was the bathroom”, “noises were heard”, “the curtain was hanging”, “a pity” and that “after ordering a ham and cheese sandwich in the cafeteria, they took a piece of bread for which they charged 9 euros and that the tables and the toilet were also dirty there”, constitutes an interference with the honour of the Hotel, but rather whether the platform was responsible for storing such comments made by a third party.
As we know, TripAdvisor is a digital portal through which you can hire tourist services (trips, meals in restaurants, hotel stays. . . ), as well as issue and spread the opinions and comments you want. And, in fact, this series of companies (which daily receive criticisms that go beyond freedom of expression) have been finding themselves in a position of defencelessness, since the identification of the users who make this type of comment became impossible, and in this type of situation, article 2 was interpreted. 17 of Law 34/2002, of 11 July, on information society services and electronic commerce, in a way that is contrary to the interests of the parties concerned.
But, as time goes by, the interpretation of that art 17 of the above-mentioned legal body has been more flexible and guaranteed for the protection of the right to honour, it being understood that the service provider will be responsible for illicit comments hosted on its platform. In this last sentence, the Court of First Instance of Merida has understood that TripAdvisor is directly responsible for the accommodation of comments harmful to the reputation of the Hotel because it had effective knowledge that the information had non-licit character.
Certainly, this is a positive statement for the future as more and more digital platforms and corners are acting as perfect scenarios for a third party, under a pseudonym, to spread as much as it wants.
From AVERUM Abogados we share the idea included in the recent sentence that condemns TripAdvisor; since service providers have to set up the corresponding surveillance systems so that users do not use them to denigrate and publish derogatory comments, which, undoubtedly, can generate a reputation crisis that leads to an incomprehensible closing of doors of the affected one.
As we were saying, the EUR 300 compensation granted derives from the fact that the hotel requested such an amount, since its purpose was simply to withdraw the comments. However, let’s remember that Article 9. 3 L. O. 1/1982, of 5 May, provides that the amount of compensation must be adjusted to the circumstances of the case and the seriousness of the injury, which will result in the affected company obtaining a figure proportional to the damage caused.