In December 2015, the U.S. Senate passed a national “right to Yelp” bill, and that legislation is pending in the House of Representatives. Meanwhile, last week Maryland followed California by passing the country’s second state “right to Yelp” bill.
I’ve written previously about how important it is for social media users to take care when writing and posting online reviews, and noted the disturbing trend in companies trying to stifle negative reviews by adding clauses to consumer contracts that limit a customer’s ability to post negative online comments. The federal bill — which is NOT yet a law, and is not currently scheduled for a vote in the House of Representatives — and the laws in California and Maryland seek to prohibit companies from using non-disparagement clauses — contract clauses that prohibit customers from speaking their minds online — by fining business that seek to enforce them.
What does it mean for the average social media user? Unless you live in California or Maryland, the laws mean nothing so far. Consumers in the other 48 states can still be bound by “small print” clauses in contracts or purchase agreements that limit their right to post negative commentary online.
And even in California and Maryland, consumers can face litigation if they post negative reviews that cross the sometimes hard to spot line between opinion and libel or other legally prohibited comments. That will remain true even if the federal law eventually passes.
The truth is that business owners and professionals (doctors, hotels, wedding photographers, and other independent professionals) got tired of having their livelihood attacked by anonymous online posters and started fighting back with all of the tools they could find. For some, it’s SLAPP lawsuits. For others, it’s a contract that fines customers for negative reviews. And for others, it’s the so-called “gag clauses” that got the states of California and Maryland to take action.
What the Right to Yelp Law Does
The so-called “right to Yelp” laws stop businesses from claiming the copyright to reviews about their business — a tactic that allows companies to force sites like Yelp to remove negative reviews due to claimed intellectual property or copyright infringement — and stop them from forcing consumers into contracts that fine them for negative but otherwise legal reviews.
The removal of intellectual property claims is an important protection becasue sites like Yelp are considered “common carriers”, and do not have to remove user-generated comments based on a libel claim, but they do have to remove user-generated material that violates someone’s copyrights.
But it’s the provisions in the Senate bill that makes any contract provision void if it restricts a party to the contract from reviewing the goods or services contracted for, or imposes a penalty or fee for such reviews, that are the real game changers.
None of the existing legislation protects users who make false claims, or try to harm a business by asking others not to patronize it. They simply protect consumers from having their right to complain publicly taken away in a contract or purchase agreement (such as an estimate, contract, payment receipt, invoice, or medical consent form) that is required so that they can purchase the product or service in the first place.
The state bills and the Senate measure are being welcomed by free speech advocates and social media users. H.R. 2110, introduced in May 2015 by Rep. Darrell Issa (R-CA), is still in committee. It mirrors the bill that passed unanimously in the Senate before the Christmas recess, and President Obama has promised to sign it as soon as it reaches his desk.
If you’d like to urge your representative to support this important legislation to protect the rights of bloggers, social media users, and customers to review and comment on the products and services they purchase, you can track the bill’s progress at this link, and if you need to know how to contact your representative in Congress, use this link to find the right individual.
H.R. 2110 is one of the few bipartisan bills of the current Congress, with a sponsor and co-sponsor on the Republican side of the aisle and several co-sponsors from the Democratic side of the aisle. It’s been stalled in the Subcommittee on Commerce, Manufacturing, and Trade for months. Congressman Michael C. Burgess (R-TX) chairs that committee. Use the link above to contact him to ask him to move this legislation forward, or contact any member of the committee — especially your own representative, if applicable — to ask them to move the legislation forward.
Committee members include:
Michael Burgess (Texas – 26) – Chairman
Leonard Lance (New Jersey – 07) – Vice Chairman
Marsha Blackburn(Tennessee – 07)
Gregg Harper (Mississippi – 03)
Brett Guthrie (Kentucky – 02)
Pete Olson (Texas – 22)
Mike Pompeo (Kansas – 04)
Adam Kinzinger (Illinois – 16)
Gus Bilirakis (Florida – 12)
Susan Brooks (Indiana – 05)
Markwayne Mullin (Oklahoma – 02)
Fred Upton (Michigan – 06) – (Ex Officio)
Janice Schakowsky (Illinois – 09) – Ranking Member
Yvette Clarke (New York – 09)
Joseph Kennedy (Massachusetts – 04)
Tony Cárdenas (California – 29)
Bobby Rush (Illinois – 01)
G. K. Butterfield (North Carolina – 01)
Peter Welch (Vermont – 00)
Frank Pallone, Jr. (New Jersey – 06) – (Ex Officio)
Each member listed above is shown by state and district number — for example, Congressman Rush represents the first Congressional district in Illinois. Your voter registration card will tell you what district you live in, or you can use the link to the U.S. Congress’s Find Your Representative service by entering your home zip code.
Yelp Employees & the Right to Yelp
I thought that it was ironic that during the same week that Maryland passed its “right to Yelp” law, a Yelp employee was fired after she publicly complained about wages and working conditions. It was a reminder that even though the First Amendment gives us all the right to say (or post) our opinions, it doesn’t protect us from the consequences of exercising those rights.
I suspect that this young woman, Talia Jane, will have a hard time finding another job after posting her diatribe against her employer. After all, she moved to the notoriously expensive Bay Area to accept a job that paid $8.25 per hour — which in my opinion, shows a lack of common sense. No one can live on that income in San Francisco. And employers are rightly concerned about hiring someone known to make their grievances public instead of working to resolve them through appropriate channels within the company.
Forbes contributor Tai Tran posted “A Millennial Response” to Talia Jane’s open letter to the Yelp CEO. In it, Tran urges his fellow millennials to take action to improve their circumstances rather than using social media to vent their frustrations. It’s a well-written response that instead of considering who’s right and who’s wrong, offers practical tips for young workers and their managers.
I suspect that all of us will need to consider Trans’s points as millennials come to dominate the workforce. Their attitudes and communication styles are so different from those of the Gen X and Baby Boomers in management that more unfortunate confrontations like the one Talia Jane had with Yelp are almost a sure bet.