Two Scottish guest house proprietors, angered at what they consider defamatory comments from guests posted to the TripAdvisor website, have failed on appeal to have the Court of Session order disclosure of the identities of the people who posted the reviews.
Three Inner House judges upheld the decision of Temporary Judge Paul Arthurson QC earlier this year (click here for report), that the court had no jurisdiction to order TripAdvisor, an American company incorporated n the state of Massachusetts, to disclose the information sought under section 1 of the Administration of Justice (Scotland) Act 1972.
Martin and Jacqui Clark, who run the Tigh-na-Cheo guest house in Kinlochleven, had petitioned for the order after reviews which they considered defamatory were posted by people using pseudonyms, one apparently based in London and one in Manchester. Before the Inner House they argued that the action could be brought in Scotland and the court could make an order against the person who held the information, wherever they were situated. It did not matter that the order was not itself enforceable in the foreign country. A clause in TripAdvisor's terms and conditions, giving exclusive jurisdiction to the Massachusetts courts, should be read as applying only to disputes against TripAdvisor itself.
Giving the judgment of the court, Lady Paton, who sat with Lord Menzies and Lord Drummond Young, said the appropriate procedure in this case was by letters of request to the Massachusettts authorities under the 1970 Hague Convention on taking evidence abroad. Section 1 of the 1972 Act did not extend beyond Scotland; nor would the court issue orders in the expectation that they might not be obeyed, and it appeared that TripAdvisor was not willing to divulge the information. Its terms and conditions were also unambiguous and covered the present application.
The issue between the petitioners and TripAdvisor "constitutes in our opinion a '[dispute] arising out of or relating to the use of [the] Website', and accordingly the clause prorogating the jurisdiction of the Massachusetts courts applies", Lady Paton said.