After the controversy over false reviews on sites like TripAdvisor, I have held a debate about the blacklists that several tourism platforms have created over conflicting guests. This initiative, which allows subscribers to view the list of problematicpassengers, may affect the right to honor or freedom of expression in the words of some shysters. The Spanish economic newspaper Expansion has just published a reference I want to comment on here. Not from the law perspective, but from common sense that marks every principle of reciprocity.
According to the Charter of the United Nations, the signing states apply and develop the right to free expression – an inalienable right of every person to communicate what they think and how they think it. This right prevails in some countries like the United States, even on top of other constitutional rights such as honor, privacy and self-image. So much so that successive actions against TripAdvisor have not matched punitive judgments by the courts, except in exceptional cases.
In the United States, trampling on the flag of stars and stripes does not constitute a crime. The opinion is expressed, although resulting in a nuisance. There’s neither patriotic sacrifice of ships, nor any rending of garments. And from this practice, review portals about hotels have managed to resist the initial onslaught of hoteliers, understandably rebuffed in their legal battles. Time has given the reason to defenders of freedom of expression and the hotel industry has begun learning how to handle these criticisms, some unfounded or infamous. Years later it is curious to observe how these same angry hoteliers encourage their publication on TripAdvisor and even reward them with discounts or privileges to aggrieved customers on their next stay.
The next step was to distinguish between constructive criticism and that which contains some mischief or worse, wields blackmail. And as the courts continue sheltering above all freedom of expression (constitutional law sanctifies the accuracy of the information, but corresponds to the complainant to prove the falsity and not the reviewer to its veracity), the hotel industry has begun to take into account initiatives as novel as review portals… about reviewers.
Newly created portals are gaining attention such as guestscan.co.uk in Britain; guestchecker.com in the United States; or Elitebook.es in Spain. From the consent given in their input record, personal client references will be made to a database in which they’re described positively or negatively. Only hoteliers associated with the network can access these data in order to comply with all obligations of the Organic Law on Data Protection (OLDP).
Paula Garcia, head of new technologies of Pons Patents and Brands, stresses in Expansion that «the customer may feel compelled to accept the clause on the use of his data for the hotel to allow him access without problem.» However, there is a nuance that escapes this idea. And that is that the client may not feel obligated, but is forced directly, to be looked at in a public space, such as the street, let alone a private one outside the customer referral. The legal system will have to adapt to the new reality of the digital society. When you go out, millions of people, cameras and Google Glass are watching you without you being able to prevent it. No law prohibits looking at pedestrians. And, increasingly, the look is digital, picture-taker, VCR, robotics.
«Whether a client exposes an opinion on the Internet, this should not be assessable. This attacks directly against freedom of expression and is a clear repression to the review of a consumer,» argues Francisco Pérez-Bes, vice president of the Association of National Advocacy Experts ICT. Doesn’t this sound like a person should not be “watchable” by other eyes? Because as long as the person has the use of reason, he/she cannot be prevented, either by law or by force, not to use his/her reason. It is a physiological incongruity. Any human being in possession of use of reason will evaluate everything that happens or affects him/her. It would be unfair to prevent an opinion on another opinion. That would be unacceptable discrimination, for the recipient of a service is the only one with the right to opinion and not the one providing it.
«Other aspects such as smoking in forbidden spaces, stealing or causing damage should not be rated because there are legal ways to report these behaviors and these issues would have to be sanctioned by the relevant authorities», says Enatic’s vice president. Obviously, this idea aligns with that of some owners of tourism establishments that wish to abolish free speech contained in portals such as TripAdvisor. No one should assess, according to them, the defective facilities of a hotel because “there are already legal ways” to determine whether my bed is outdated or the curtains are falling down because of being so old.
The most controversial point of the above-referenced initiative that gives voice to hotels is that the supposedly conflicting clients become part of a blacklist. «For a consumer, the worst blacklist that exists is that of a defaulter and to be in it there are certain requirements that must be met. Everything is regulated and it’s specified that there is certain evidence that must be presented and what rights the defaulter has to defend himself in the case where the allegation is false or misleading. However, in this case, there is no specific legislation and the client could be defenseless against certain accusations,» claims Perez-Bes. The argument put forward by Enatic’s vice president almost demands a specific regulation for the review portals about the reviewers. In his regimented eagerness, he doesn’t oppose a blacklist, but the loophole of a specific blacklist for the reviewed customers by the hotels that have hosted them.
All this denotes our limited cultural training to meet the challenges of the new digital society because blacklisting exists and will be increasingly publicized. The new world demands greater transparency in all aspects of our existence. No longer will only politicians and bankers be put to a scrupulous scrutiny, but the people who walk on the street in general. We all “peep” ourselves. Because the cultural foundation of privacy, the right to privacy is inherent in some cultures but not in others. And in that sense, the digital world is relativizing the right to privacy with a new unwritten law of transparency. Social media, face-recognition programs, and the Big Data revolution leave no doubt. Everyone will be able to spy without limits. There will be no more privacy.
Fernando Gallardo |