A few days ago, Arthur Frommer wrote about an incident in which a Utah couple complained their credit was ruined in an act of revenge by a business over a negative online review ("Can You Be Sued for Writing a Negative Online Review for a Vacation Home or Apartment at Which You've Stayed? Amazingly, That's Possible").
Now Public Citizen, the consumer protection group which was founded in 1971 by Ralph Nader and often challenges the pharmaceutical and automotive industries, has taken up their case, filing suit against the business, KlearGear.com, and the debt collector that the customers allege it used to ruin their credit in retaliation for the negative comments.
Although the incident was not travel-related, as Arthur Frommer pointed out, the precedent could affect all travelers who write online reviews. The rise of non-disparagement clauses in purchase conditions poses a real threat of legal retaliation across all areas of e-commerce should a business not take kindly to your public feedback.
Public Citizen says that's unconstitutional. Even if a non-disparagement clause is written into the sale's "terms and conditions," it writes in its suit in the U.S. District Court in Utah (click here to access a PDF of the filing), "the clause would be unenforceable under basic principles of contract law and the First Amendment."
In other words, Public Citizen is going to court to establish, in part, that a business, including a vacation home or a hotel, cannot waive your Constitutional rights of free expression simply by embedding a clause in its purchase agreement. As user-generated review sites become ever-more ubiquitous, the clarification becomes more important.
There are some details that are specific to this case having to do with the reporting of debt to a credit agency and the question of whether the non-disparagement clause was in the terms agreed to by the customers in question. But regardless of those circumstances, the message from Public Citizen is clear—it wants the courts to acknowledge that customers have an absolute right to free speech when they post any online review (within the bounds of truth, of course, as all defensible free speech must be.)
Public Citizen has decided to elevate this case to the national spotlight; it's currently highlighted on the front page of its website, and it has released a press release announcing its position (read that here).
It's heartening to see that some attention is being paid to this issue—as a guidebook writer, it could come to roost the in pages I publish—and I'll be eager to see where it goes from here.
(Photo credit: bloomsberries/Flickr)
