The Right to Complain – Courtesy of Yelp

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Photo by Stephen and Courtney Johnson

Our Founding Fathers wrote in the Declaration of Independence, that all men “are endowed by their Creator with inherent and inalienable rights.” In response to lawsuits filed against Yelp, Congress has ruled that these rights now include the right to complain.

As humans evolved, the ability to evaluate and compare was necessary for survival. By taking in a new person, place, or thing then mentally categorizing it with something already known, our ancestors, ideally, could tell friend from foe. In modern times, it’s not quite as life or death, but the ability to rate and compare things is still crucial to how our brain works and businesses have found a way to capitalize.

Companies like Yelp have utilized that natural behavior and branded it so that we can, for example, avoid food poisoning or a bad haircut. Because we are programmed to learn and remember more from negative experiences than positive ones, folks scrolling through the platform’s numerous reviews are likely to take away more from scathing comments than glowing ones.

This issue was at the center of a California lawsuit in 2013, when a San Francisco legal firm took Yelp to court, requesting the removal of negative reviews from their site. A lawyer at the firm claimed a former client had defamed her on Yelp and accused her of misconduct that never occurred; when that client would not reply to a direct lawsuit asking to take down the posts, the lawyer took her suit to the review site. The judge agreed the statements posted were defamatory and ordered their removal. A subsequent appeals court upheld the decision.

This case has made its way through the state’s judiciary system and in September of 2016, was placed on the docket to be reviewed by the California Supreme Court. The point of debate lies in the precedent this case might set. Yelp claims that upholding the ruling to take down the posts would open the door for other businesses to do the same. Other Internet powerhouses, like Facebook and Microsoft, have been vocal in their support of Yelp. Company leaders penned a letter to the court saying such a ruling would “silence a vast quantity of protected and important speech.”

The California case isn’t the only one that’s been fought on this. Similar litigation has been filed in Washington, where a locksmith filed a libel lawsuit against Yelp after getting a one-star review. He claimed the rating was actually meant for another area business, but that Yelp had linked it with his page as part of a scheme to generate more ad revenue. Libel is defined as the published or broadcasted “untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn, or contempt of others.”

The court cited lack of evidence in the locksmith’s claim, saying Yelp was not the culprit, only a third-party aggregator of data, and therefore was not liable.

While Yelp was not the direct target of a lawsuit filed by a New York dentist, his legal action against a former patient who posted a negative review on the site pushed the company one step further in protecting their consumers. The service now adds warnings to pages of businesses engaged in similar legal proceedings. In July, Yelp wrote a blog post announcing the feature, saying:

“Since Yelp was founded in 2004, we’ve made it our business to help protect consumer free speech. Consumers have the right to share their opinions about their experiences with businesses, but there will always be a small handful of businesses who mistakenly think it’s a good idea to threaten consumers who exercise their free speech rights. As a result, we started a new type of Consumer Alert to warn people about businesses that issue questionable legal threats.”

While businesses have legal protection against both libel and slander, or oral defamatory statements, it’s been the job of the courts and of Congress to adapt our law to changing times and technologies.

Thanks to legal concerns raised by these lawsuits, consumers are now guaranteed the right to leave a bad review.

In 1996 the Communications Decency Act was passed, which let websites provide “neutral tools” for users to post online, and as such, would keep the websites from being held liable for potentially libelous content posted by individuals. The 1996 law has been used to protect sites like Yelp from legal action for two decades, but after numerous challenges over the years, Congress has gone a one step further to protect consumer’s rights.

The Consumer Review Fairness Act, passed in December of 2016, forbids businesses from penalizing or taking legal action against a client who publishes public criticism. The legislation follows years of efforts by consumer advocate groups to rid the business world of the fine print in contracts that ultimately forbid bad reviews from customers. This fine print, also known as a “gag clause,” was, prior to the passing of the Act, a legal way to limit free speech.

Yelp says the Consumer Review Fairness Act “gives Americans nationwide new guaranteed legal protections when it comes to sharing these honest, first-hand experiences.”

So, feel free to complain away, and warn your neighbors about the shifty contractor, the bad sushi, or the tattoo artist who spelled your girlfriend’s name wrong, and know that your words are your own and that they are protected for years to come.