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man holding his hand out thumb downAny hotel that tries to stamp out negative reviews using strong-arm tactics is going to find itself more criticized than it ever thought possible. But are such tactics legal?

That’s what we wondered after reading about the Union Street Guest House in Hudson, New York, which only recently rescinded a policy by which it held back $500 of a wedding couple’s deposit for every negative review of the hotel posted by a wedding guest.

Christopher Cole, a partner at Crowell & Moring LLP says forbidding bad reviews can be legal so long as the policy is part of a contract the reviewer has agreed to beforehand

“Anybody can get you in a private contract to agree to keep quiet,” Cole told IndependentTraveler.com. “Somebody who had clear notice of this policy coming in and signed up for the wedding and paid their deposit and agreed to it – that’s the choice they make. I think a lot of people might not choose to do business with somebody like that if they saw the policy up front.”

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He compared such a policy to an employment termination agreement, in which an ex-employee is forbidden from saying anything bad about the company for a certain period of time.

Without such a contract, hotels cannot forbid guests from writing negative reviews.

“Opinion is protected by the First Amendment,” Cole said. “There’s a pretty forgiving standard for opinion, particularly for a business, which is typically entitled to a lower level of protection … You have more latitude to speak your mind.”

The difficulty of suing over opinion was made clear after a lawsuit leveled against TripAdvisor by the Grand Resort Hotel and Convention Center in Tennessee was dismissed by a judge. The hotel had sued for defamation after it was given the top spot on TripAdvisor’s 2011 list of America’s dirtiest hotels. For a defamation suit to succeed Cole said, the plaintiff must prove “actual malice,” meaning TripAdvisor had known what they were publishing was false. “That is a very high standard,” Cole said, especially when opinion is at the heart of the matter.

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– written by Dori Saltzman

Author’s Disclaimer: IndependentTraveler.com is a subsidiary of TripAdvisor.

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