Yelp And Others Fight Back Against Non-Disparagement Clauses

Image result for restaurant torontoFor better or for worse, today’s digital age allows for a business to be a constant subject of scrutiny. If you have a bad experience at a restaurant, for example, not all is lost — your one saving grace is that you can post about your disappointing meal online and warn others to avoid similar service. Accordingly, sites like Yelp and TripAdvisor have become popular forums where users can seek out honest opinions about a new restaurant or place they plan on visiting.

However, it appears that some businesses in the U.S. are becoming increasingly paranoid about the potential of receiving poor online reviews, going so far as to get their customers to sign non-disparagement clauses. These clauses allow the businesses to sue customers if the owners go online and discover a bad review.

As a result, new legislation in Congress aims to protect a customer’s right to free speech, and allow them to post reviews online without legal consequences. Kennedy, D-Mass, and Republican Rep. Leonard Lance of New Jersey sponsored this legislation, which the House passed last week.

The motivation behind this legislation is two-fold. Not only are non-disparagement clauses arguably infringing on Internet users’  free speech, they also prevent businesses from gaining new customers from this growing kind of “word-of-mouth” digital advertising. In other words, it’s possible that these clauses could, in part, help stunt a company’s economic growth.

Companies like Yelp are also worried about future precedents that non-disparagement clauses and removing negative reviews might set. Yelp has even turned to Supreme Court to overrule a lower court, who ruled that Yelp has to take down negative reviews of a law firm. While the law firm argued that the reviews in question are defamatory, Yelp counters that this ruling could in turn require other negative reviews to be taken down as well. This would not paint an accurate picture of companies on the market, and unfairly silences consumers’ voices.

Sites like Yelp worry that more and more people are being pressured into signing contracts that make posting negative reviews illegal —without realizing this is a hidden, fine-print stipulation of the contract. So, Yelp in particular is taking a more active role in warning users about non-disparagement clauses. If you go on certain companies’ Yelp pages, you’ll see a new disclaimer that states: “This business may be trying to abuse the legal system in an effort to stifle free speech, including issuing questionable legal threats against reviewers. As a reminder, reviewers who share their experiences have a First Amendment right to express their opinions on Yelp.”

For more on this story, visit the CBC.

Featured image source: Toronto Restaurants

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