The Customer is Always Right to Free Speech

Remember that time last year when a too-big-for-their-britches hotel in Hudson, New York, got momentarily famous—for all the wrong reasons—when it came out that its contracts for weddings included a provision that would fine newlyweds $500 for every negative review of the hotel by anyone in the couple’s wedding party? Unsurprisingly, sane people across the country collectively called the hotel out for being total buttheads.

Technically, however, it is legal for the hotel to do what they did. Which is why a new federal bill is in the works that would make such a practice illegal, thus protecting the unsuspecting public from other such donkeys who would look to exploit such a thing.

A Surprisingly Common Practice

Members of the general public without any legal background—yours truly included—were generally unaware that the dingleberry hotel mentioned above was, in fact, within their legal rights when their shady practice came to light. Other examples of these so-called non-disparagement clauses were soon exposed, showing how common they actually are.

Breakfast cereal powerhouse General Mills, for example, included a similar clause in some of their online Terms and Conditions. In effect, General Mills’ Ts & Cs forced consumers to waive any legal rights against the company if took part in any one of several seemingly innocuous online activities: downloading coupons, “Liked” the company on Facebook, entered a contest sponsored by the company, etc. Essentially, if a consumer interacted with General Mills online in any positive or neutral fashion, the consumer could be penalized in some fashion if they were to ever a negative review of the company online, anywhere, ever.

General Mills vs. Consumers: The Thrilla in Gen'ral Milla

General Mills vs. Consumers: The Thrilla in Gen’ral Milla

The clause was, of course, was buried deeper in the Ts & Cs than a woodtick in a coon hound’s hide after a three-hour walk through the Minnesota Northwoods. Upon its discovery, and the ensuing poo storm, General Mills removed the clause and restored all applicable rights to their customers.

Elsewhere, some businesses and service providers have asked customers to sign waivers granting the copyright of any online reviews to the company in question. In this way, the business legally “owns” the content of the review and can request its removal from Yelp or wherever.

Consumer Review Freedom Act of 2015

Earlier this year, in response to these and other similarly scuzzy tactics, California legislators passed what has come to be known as the “Yelp bill.” Officially “California Civil Code §1670.8,” the bill outlaws non-disparagement clauses of all shapes and sizes, and prohibits:

“contract[s] or proposed contract[s] for the sale or lease of consumer goods or services from including a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.”

Additionally, the bill prohibits businesses from “threaten[ing] or [seeking] to enforce, a provision made unlawful under the bill, or to otherwise penalize a consumer for making any statement protected under the bill.”

The new federal bill, a beefed-up version of California’s Yelp bill, is being called the Consumer Review Freedom Act of 2015. It will, in part, “prohibit the use of certain clauses in form contracts that restrict the ability of a consumer to communicate regarding the goods or services that were the subject of the contract.”

By all reports, the bill has considerable bipartisan support in Congress. As well it should. This is America, dagnabbit, and Americans’ right to free speech should never be discouraged. (That’s not exactly how First Amendment works, but, you know, horseshoes and hand grenades.)

Photo credit: Yelp.com / Foter / CC BY-NC-ND

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