Free speech law doesn’t always protect social media bashing of bad service

CONSUMER FORUM

Posted Sept. 12, 2016, at 10 a.m.
A pet-sitting company in Texas allegedly overfed a customer’s fish, allowing tank water to become cloudy while the customer was on vacation. Not a big deal, most of us might think.

But the owners had several other complaints, and on their return they wrote up a negative review and posted it on Yelp. The couple claimed they had been unable to talk directly with company officials, so they went to social media with their concerns.

The company struck back, filing a lawsuit claiming the couple had violated the nondisparagement clause in the contract they signed. A judge recently dismissed the $1 million lawsuit, ruling the clause was not enforceable.

This is news in the consumer world because it appears to be the first case in which a nondisparagement clause in a consumer contract has been ruled unenforceable. The company had tried to stifle bad publicity by including the clause; now the firm is on the hook for attorney fees.

Other attempts to silence consumers in advance have caused uproars. In an Aug. 10, 2014, blog post, we wrote about one case in which a hotel that hosted weddings threatened a “$500 fine that will be deducted from your deposit for every negative review” written about the hotel. The media firestorm prompted the hotel to remove the stipulation from its website; the hotel said later it had been published as a joke.

Other businesses have used nondisparagement clauses with mixed success. Consumer advocates have advised people entering into contracts to look for terms such as “negative review,” “no-review policy” and “public comment” before signing.

Lawyers had been advising clients to tighten up their definitions of “disparagement” and to include language in contracts stating that exclusion of such clauses amounts to a deal-breaker. Momentum seemed to being going pro business and anti-free speech. Last fall, the issue made it to the halls of Congress.

A bill titled the Consumer Review Freedom Act was introduced, aimed at banning speech-stifling language from contracts. One of the Senate sponsors, Brian Schatz, a Democrat from Hawaii, said the bill would ensure free speech “and ensure consumers are free to share their views, free from intimidation.”

Because the nature of internet reviews is global, enforcement of nondisparagement provisions can vary greatly by location. Unless and until the Consumer Review Freedom Act becomes law, a wise consumer might think twice before publicizing any harsh reviews of businesses. Even if it is passed, the act would not shield bloggers or others from unfair or libelous statements.

Use the writer’s approach to any statement that’s questionable: “When in doubt, leave it out.” As too many users of social media have found out the hard way, once something goes online, it almost never disappears.

Consumer Forum is a collaboration of the Bangor Daily News and Northeast CONTACT, Maine’s all-volunteer, nonprofit consumer organization. For assistance with consumer-related issues, including consumer fraud and identity theft, or for information, write Consumer Forum, P.O. Box 486, Brewer, ME 04412, visit https://necontact.wordpress.com or email contacexdir@live.com.

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