It has become commonplace in recent years for travelers and patrons to post reviews about merchants on the Internet exercising what they believe are constitutionally protected “free speech rights” that entitle them to post whatever content they want, whenever they want, to millions of people.
Prior to the existence of the Internet, speaking to millions of people was not possible without having millions of dollars to buy time on broadcast outlets. At that time, broadcast outlets “filtered” the content to ensure it, and how it was obtained, complied with applicable law. Now, this “filtering” has become the responsibility of individual citizens, and individual citizens and merchants must realize their rights and obligations under applicable law. This is an instant replay of what happened a decade ago, when college students began to “share” (that is, steal) copyrighted music on the Internet.
Applications are created very rapidly, and as has happened repeatedly since the start of the computer age, new computer applications such as TripAdvisor and Facebook are created, and the law takes some years to catch up. Now the law is catching up to the new opinion and social networking sites. You have been warned!
I love quirkey little places with smoky pot stoves where you have to walk through mud to get the firewood. Life is an adventure! The immediate effect of a site like TripAdvisor is to destroy “Route 66”-style destinations by cutting off their income so they cannot afford upkeep, thus favoring large corporate destinations. This is because a few ignorant people put up a review that say “This old place is a dump – it should be torn down” – then the place can’t stay in business when actually many people like that kind of place. Do we really want a world that is all Wal-Marts because of these hostile posts?
Even Oprah Winfrey got in on the act a few years back on a program where she traveled with Gail and stayed at the Route 66 Wigwam Village Motel where the rooms are indian teepees. How novel! But now the poor little rich girl so sadly abused as a child now can make comments to the effect that the heating system in the teepee being a piece of junk. Get a life Oprah. The people who run and stay at these places don’t wear solid gold shoes like you do. And the kids in those families go nuts at that place. They don’t evaluate the knob on the heater and take a million+ impression sucker punch at the owner. Of course, you would rather the kids to be in some stuffy 5-star hotel, right?
“Sucker punch?” That’s what it really is. These bad reviews are analogous to the class bully walking out into the schoolyard and giving a sucker punch to a kid he passes. He picks someone who is unaware of the impending attack, can’t mount a defense quickly enough, and probably won’t mount one anyway (a “cissy”). If the bully had to be accountable for his action (e.g., take a punch back in the mouth) he wouldn’t do it. He is not interested in being fair. He is interested in getting a good punch in. This describes the personality of many so-called “reviewers” on opinion and social networking sites.
There are a lot of merchants perfecting ways to remove or delete bad or unfavorable ratings, reviews, and listings from travel sites like TripAdvisor and Expedia; from social networking sites such as Yelp, MySpace, LinkedIn, and Facebook; and from opinion sites like eopinion.com and insiderpages.com; to save their establishments from these self-annointed “experts” who can’t seem to get it that cookie-cutter concrete Wal-Mart accommodations are not what everybody wants or what life is all about.
It could be argued that travel-review sites, such as TripAdvisor and Yelp, for example, practice a form unjust enrichment through the crime of trespass, through their surrogates (reviewers) acting outside of patron license. In other words, unjustly profiting from the selling of advertisement space presented alongside confidential information obtained via trespassing. If a merchant is being visited for review, the visitor is required to state such and be granted license, or to be refused, just like merchants can do with state inspectors acting without authorization from a court or law. And, sites like TripAdvisor and Yelp don’t have a court or law authorizing them to review a merchant, of course.
Adjudication could determine these so-called “reviews” to constitute “unauthorized inspections” obtained via trespassing because the merchant was not notified that the inspection was being done, and Attorneys General could file for preliminary injunction blocking travel-review sites display of said “reviews” in their state pending a judicial inquiry, thereby protecting the small business merchants in the state. Poor TripAdvisor, Flipkey, hotelguides.com, hotels.com, priceline.com, eopinions.com, insiderpages.com, and the like may become review-starved. In the meantime, travelers would have to find out some other way to evaluate their accommodations – such as by calling the Chamber of Commerce or BBB, or by looking at fuzzy Google Earth pictures.
What about Free Speech? Boy, is that a crock argument. Attention NewBies: Private Information is not Public Information. Private parties contract away their free speech rights all the time. Ever read a sales contract “boilerplate?” It often says something like “Buyer acknowledges that Seller’s tools, methods, and procedures are proprietary information of the Seller, and Buyer agrees not to disclose said tools, methods and procedures to third parties.” Voilà! No free speech!
Your transaction with a merchant is a sales contract governed by a “super contract” called the UCC (Uniform Commercial Code) and this law allows the merchant to establish “reasonable terms of sale” that can include, by the way, that “what the patron sees and hears on the merchant’s private property is private, confidential, proprietary information.” The merchant can file a lawsuit to have the patron remove travel-review site postings because the contract – as stated on the reservation card, signage, or bill of sale – establishes that information gleaned on the merchant’s private property is confidential.
These charges are not a joke. That bad review you post can DESTROY A MERCHANT’S LIVELIHOOD just as sure has if you took a gun and shot their legs up. He may have children in college that he will no longer be able to afford, or he may not be able to afford his family’s health insurance bill, miss urgent medical care and become ill. Most merchant don’t choose to have deficiencies – economics force them into it.
How is the economy today? You are cruel to exploit that for your ego to post a review. And, a person like myself, may be a happy patron but I can no longer go there because it has closed due to your review describing it to be a “dump.” Also, the next Wal-Mart may be destroyed before it gets out of the starting gate, which should be of great concern to Wall Street. And, just like “free speech” does not allow you to yell “fire” in a crowded theater, it also does not allow you to take private information you learn as a patron on private property and “Yelp” it as a reviewer on public media – without permission of the merchant. Prosecutors and Attorneys Generals, as well as professional associations need to gain realization of these new cyber-crimes and lobby that existing laws be applied and enforced.
To read the entire article, go to: http://www.citmedialaw.org/forum/defamation-and-privacy-law/post-review-get-arrested-trespassing .