By signing on the dotted line, or agreeing to those endless terms of service, some customers are unwittingly giving away their right to free speech. Specifically, the right to write negative online reviews. And they may have to pay — literally — if they write the negative review.
Experts say that more companies from wedding photographers to dentists are slipping non-disparagement clauses (and other language that prevents consumers from writing negative reviews) into the fine print almost no one bothers to read. Consumers who violate these policies may be sued and fined — even if the complaints are 100 percent true.
One hotel, the Union Street Guest House in Hudson, N.Y., demands you pay them if you — or any of your wedding guests — write a bad review of the hotel. Specifically, the policy reads: “There will be a $500 fine that will be deducted from your deposit for every negative review of USGH placed on any internet site by anyone in your party and/or attending your wedding or event.” In other words, you better tell your guests to zip their lips, the hotel policy clearly implies.
And there’s far from alone in doing this. Anja Winikka, the site director for TheKnot.com, heard about two cases among brides in the past year. In one of the instances, a photographer threatened a bride with a $350,000 lawsuit over a bad review the bride wrote, after the bride says she had unknowingly signed a contract that included a so-called non-disparagement clause in it, she says. And Scott Michelman, an attorney with Public Citizen, a nonprofit consumer advocacy firm, says he thinks these kinds of cases are new in the past few years — and that recently “we’ve been hearing about them more.”
Part of the impetus behind companies adding in these clauses is the fact that an increasing number of people both write online reviews of companies and turn to online reviews to figure out what companies to do business with, says Michelman. As of the fourth quarter of 2013, there were more than 53 million reviews on Yelp (the number of reviews on the site grew 47 percent from the year prior) and the site has more than 120 million monthly visitors. But a bad review can hurt business, so companies are trying to prevent consumers from “trash-talking” them — even when said trash talk is true. (Some employers have long required employees to sign these kinds of non-disparagement contracts when they leave a company.) Typically, a person has the right to give their opinion or to make true statements of fact about a business; making false statements, on the other hand, is often libel, and plenty of people making such comments online already get sued for that.