Yelp is used by thousands of people across the United States and is expanding across the globe. The purpose of Yelp, according to Yelp, “is to help people find great local businesses.” When a person acquires an account with Yelp, they expect to be able to freely, and hopefully honestly, post a review. Yelp has a section on its website where it states guidelines for users to follow. The website states that it allows users to post reviews, and photos as well as other content. Now, of course, there are going to be a few bad seeds that write bogus reviews. And unfortunately, there really isn’t a way to prevent those few malicious reviews.
Lately, several companies have added “gag clauses” to their terms of service agreements to prevent consumers from leaving negative and or damaging reviews. Hence, the term gag clause. Companies such Prestigious Pets, and a Washington State Locksmith have unsuccessfully tried to sue Yelp for consumers’ negative reviews. Suing a company which allows users to post negative reviews is essentially like shooting the messenger. In this era of extreme technological advancement information is easily spread. As a result, information freely travels, and using a website to share information is today’s new norm, and it is no different than 50 years ago when information was spread by word of mouth. Congressman Darrell Issa, a Republican from California argues that the internet is a place where people can openly speak and share information, but when companies enforce gag clauses information becomes lost.
Prestigious Pets is suing two customers and seeking $1 million dollars in damages as the company claims that the customers dishonored their contract, because they posted a negative review of the company on Yelp. In its customer agreement Prestigious Pets states, “In an effort to ensure fair and honest public feedback, and to prevent the publishing of false or libelous content in any form, your acceptance of this agreement prohibits you from taking any action that negatively impacts Prestigious Pets LLC.” Michelle and Robert Duchouquette, the customers that Prestigious Pets suing, claim that the pet-sitter caused “‘serious harm’” to their pet fish while they were away. The customer agreement also states that if any violation of the agreement occurs it will be determined by the company, which is ridiculous as the company will undoubtedly clear itself of any wrongdoing.
Prestigious Pets’ contract jargon works against them. It works against them because the consumers, the Duchouquettes, did not publish any false content. They did not create an elaborate fabrication to make the company look bad. They hired the company to perform a service, which the company did not provide. The couple states that they did not think the company would be a good fit, but they used the positive reviews on Yelp to help make their decision. Clearly, the Duchouquettes were unaware that Prestigious Pets had incorporated a so-called gag-clause into the contract. If they had known of the clause one could be fairly certain that they would not have posted the negative review on Yelp.
Yelp is not the only review based company being affected, so is TripAdvisor. TripAdvisor’s assistant general counsel Brad Young states “Consumers are harmed by receiving less information.” Which is clearly what happened with the Duchouquettes. They were the party injured as result of the gag clause imposed on Prestigious Pets’ customers, as the clause prevented others from posting negative reviews online. The case brought on by the aforementioned pet-sitting company lost its case and was ordered to pay court fees.
A court ruled earlier this week that “Yelp’s star rating system does not make it responsible for negative reviews of businesses because it is based on user input.” The court also went on to say that Yelp is not responsible for negative reviews, because the site does not create the content that is generated on its site. Along with the court ruling, the House of Representatives passed the Consumer Review Fairness Act, which will prevent the use of gag clauses. The bill will not protect or affect posts that have malicious intent. The Act is currently awaiting a vote from the Senate. Coincidently, the Senate passed a similar bill last year.
Regardless of whether or not the consumer signed a contract, a company should not be able to write a contract that puts a limitation on the consumer’s first amendment right, the freedom of speech.
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