in the legal case Backpage.com v. Dart a unanimous panel of the Seventh Circuit Court of Appeals in a lively opinion ordered Thomas Dart, the sheriff of Cook County, Illinois, to end his campaign of suffocation against the small ads
website and stop violating its First Amendment rights.
The court of appeals rejected Sheriff Dart's contention that he was merely expressing his personal distaste for Backpage and not using his position as a government official to coerce Visa and MasterCard into discontinuing business with the
website. Rather, the court of appeals held that Sheriff Dart's actions amounted to an unconstitutional prior restraint on Backpage's speech.
EFF made a submission to the court arguing that government officials such as Sheriff Dart may not use their positions of authority to coerce companies with express or implied threats of legal liability into taking actions that censor
speech--whether online or offline.
The Seventh Circuit agreed. Overruling the district court that had denied Backpage's request for a preliminary injunction, the court of appeals issued the following order:
Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or
other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com.
While Sheriff Dart is rightly concerned about sex trafficking, the court of appeals noted that no one is claiming that there is no constitutionally protected speech in the ads on Backpage's website. (emphasis in original) Yet Visa and
MasterCard bowed to pressure from Sheriff Dart and others by refusing to process transactions in which their credit cards are used to purchase any ads on Backpage, even those that advertise indisputably legal activities. (emphasis in
Sheriff Dart had written letters intimating that the credit card companies could be prosecuted for processing payments made by purchasers of the ads on Backpage that promote unlawful sexual activity, such as prostitution. The court of
appeals noted that It was within days of receiving the letter that the credit card companies broke with Backpage. The causality is obvious. Thus the court held that Sheriff Dart's actions constituted a prior restraint in violation of the
The Seventh Circuit equated Sheriff Dart's campaign of depriving the company of ad revenues by scaring off its payments-service providers rather than going after Backpage directly through litigation with killing a person by cutting off
his oxygen supply rather than by shooting him.
The Seventh Circuit made clear that Sheriff Dart, in his official capacity, does have freedom of government speech. However, the court of appeals stressed that such freedom has limits. He or any other government official or entity is
not permitted to employ threats to squelch the free speech of private citizens.
According to the FTC , Roca Labs, Inc "allegedly made baseless claims for their products, and then threatened to enforce 'gag clause' provisions against consumers to stop them from posting negative reviews and testimonials online."
The gag clause that the FTC refers to -- in which customers unwittingly sign away their rights to post online reviews after making a purchase -- is becoming increasingly common. And it's only one of several strategies that companies have used to
suppress negative reviews of their products.
A bill that's
picking up steam in the US Senate -- the
Consumer Review Freedom Act -- directly addresses these gag clauses. But while it represents a step in the right direction, the bill fails to address other shady practices of the online review industry.
The messy world of online reviews
Who knows what to believe these days about the authenticity and veracity of online -- typically anonymous -- reviews, which assess everything from restaurants to
But either way, let's face it: most businesses, large and small, don't want you to post negative comments about their products or services on internet sites such as
Angie's List and the aptly named
PissedConsumer.com . Even a short and damning tweet on your own Twitter account might tick off a business.
There's a reason businesses care.
One study in 2014 found that 39% of consumers read online reviews on a regular basis, up from 32% in 2013.
Another survey found that 61% of shoppers will read product reviews before making a purchase.
So, what's a company to do when faced with negative reviews, real or otherwise?
In fact, some businesses may go even further and file meritless defamation cases against reviewers, hoping the high costs of litigation will squelch the critics and cause them to retract their comments. These baseless libel suits are known as
SLAPPs -- strategic lawsuits against public participation.
A 2010 New York Times
article first called public attention to the issue. It told the story of a young man who posted a negative review about a towing company and soon found himself facing a defamation suit, with the company seeking US$750,000 in damages.
Today, many states now have
anti-SLAPP statutes that allow victims to quickly dismiss these frivolous cases, thus taking some sting out of defamation as a remedy for negative reviews.
Read the fine print
Now, there's a new technique that some thin-skinned businesses are adopting to prevent peeved customers for speaking out: the use of
gag clauses , in which customers sign away their rights to criticize a company when they enter into a contract with it.
These gag clauses are usually buried in the fine print and often go unread.
According to Chris Morran of The Consumerist , they're appearing in contracts for "everything from cheapo cellphone accessories, to wedding contractors, to hotels, to dentists, to weight-loss products, to apartment complexes."
A major problem, attorney
Jonathan Tung observes, is that "there is no national consensus on whether such gags are legal or not," as "some courts have deemed such clauses unconscionable while other courts have been very reluctant to interfere, citing
freedom to contract."
In other words, some courts consider gag clauses invalid and unenforceable, while others uphold them. A customer who violates a gag clause by posting a negative review of a company thus risks paying the company whatever amount was specified in
the contract for breaking the gag clause.
Congress steps in
The US Congress has entered the fray with the
Consumer Review Freedom Act of 2015 . Sponsored by Senator
John Thune (R -- South Dakota), the bill renders contractual gag clauses void if they prohibit consumers from reviewing products or assessing performance, and if the clauses constitute "form contracts." (Many lawyers would term
adhesion contracts because the consumer has almost no power or leverage to negotiate a better deal.) The Consumer Review Freedom Act also gives the
Federal Trade Commission the power to enforce the law on behalf of gagged consumers.
Here, Congress is following the lead of California, which in 2014 became the first state to adopt
a statute forbidding businesses from gagging their customers. The measure is also supported by
Yelp , where more than
90 million reviews have been posted.
A matter of contract, not the First Amendment
Surprisingly, perhaps, this is not a
First Amendment free speech issue. The First Amendment certainly protects our ability to express our opinions, and opinions -- as opposed to false allegations -- are also typically shielded from defamation liability.
For example, posting online that a restaurant has "horrible service" or that it is "too loud" are matters of protected opinion. Conversely, claiming that the restaurant has "rats in the kitchen" or that it uses
"stale products" in its recipes are factual allegations that, if false, are not protected.
But the First Amendment only protects speech from government censorship. The companies including gag provisions in their contracts are not government entities. Gag clauses thus are a matter of contract -- not constitutional -- law.
Although it has some quibbles with the language used in the Consumer Review Freedom Act, the
Electronic Frontier Foundation says "it's great to see lawmakers addressing some of the most overtly unfair contract clauses."
There are, of course, many more problems with online reviews not addressed by the new bill, such as how to deal with completely fake and paid-for reviews. But some companies are taking action on their own.
In April, the
Seattle Times reported that
Amazon "sued three websites it accuses of purveying fake reviews, demanding that they stop the practice." It was only the first legal punch thrown by the giant Internet-based retailer. Last month, Amazon
sued "more than 1,000 unidentified people selling fake reviews on its Web store."
Make no mistake: the Consumer Review Freedom Act is a great step forward for consumers who want to speak out, and it is wonderful to see Yelp
supporting it . But by failing to address fake posts and preventing companies from filing SLAPPs, it only nibbles at the edges of the larger problems in the Wild West of online reviews.
Two mainstream bookstores in New Orleans have filed suit against Attorney General James D. Caldwell and more than 40 district attorneys over House Bill (HB) 153. Primarily an anti-pornography measure, the Louisiana law requires anyone who publishes material harmful to minors on the Internet
to verify web-surfers' dates of birth before allowing them access. But for independent bookstores like the plaintiffs, HB 153 poses a unique threat : deny minors access to their entire web catalog or face a $10,000 fine.
According to a Shelf Awareness report, HB 153 requires this of booksellers:
[To] either place an age confirmation button in front of their entire website, thereby restricting access to materials that may be appropriate for all ages, or attempt to review all of the books ... available at their website and place an age
confirmation button in front of each individual page that might be inappropriate for any minor.
HB 153 considers material harmful to minors if :
(a) The material incites or appeals to or is designed to incite or appeal to the prurient, shameful, or morbid interest of minors.
(b) The material is offensive to the average adult applying contemporary community standards with respect to what is suitable for minors.
(c) The material taken as a whole lacks serious literary, artistic, political, or scientific value for minors
Owner Britton Trice notes that the Garden District Bookshop cannot possibly review the 1 million-plus titles on our website, and would therefore be forced to ban all minors from browsing the collection. But even bookseller sites that cater
exclusively to older generations would be required to put age verification walls in place, because the $10,000 fine applies to any retailer that does not verify visitors' ages, regardless of whether any minors come to the website or not.
The Media Coalition, the ACLU, and the Comic Book Legal Defense Fund are named plaintiffs in the challenge, alongside the Garden District Bookshop and Octavia Books.
A US domain registry xyz.com has put in a proposal to ICANN that would see it automatically censoring new domain names that match a Chinese government blacklist. Industry news site Domain Incite has reported that this puts perhaps close to 12,000
banned words and expressions onto the blacklist, thereby preventing terms such as the Chinese words for democracy and human rights from being registered within any of the company's top-level domains, which include .xyz, .college,
.rent, .theatre, .protection and .security. This will apply not only to Chinese registrants, but to registrants worldwide.
In describing to ICANN the consultations that it has undertaken about these censorship plans, xyz.com blithely claims We believe that no parties have any legitimate reason to object to the introduction of this service . Chinese bloggers
and dissidents, some of whom have received sentences as severe as life in prison for speaking out online, might beg to differ with this assessment.
Censorship of a domain name is not the same as censorship of the content hosted at that domain name (the Chinese government does both, but xyz.com's proposal only affects the former). Neither would the censorship plan prevent users from
registering domain names from the government blacklist in any of other hundreds of top-level domains run by competing registries (though China will still block these from access by Chinese users), or registering trivial variants that avoid the
blacklist. Even so, as ineffective as it may be, xyz.com's complicity in advancing the Chinese government's censorship of the Internet remains profoundly misguided, and contrary to their role as a provider of domain names to the world.
xyz.com's casual acceptance of Chinese censorship of its domain space provides an open invitation to China and other governments to apply more pressure on registrars and on ICANN itself to further limit the expression of speech through domain
names. In the long term, this will only further erode the ability for users to express themselves online, by registering domain names that describe or complement speech hosted at that domain, or are a short and pithy speech act in themselves.
Update: Backing off
4th November 2015
The CEO of .xyz has written to deny that any domains would be blocked by their registry, as their proposal had suggested. Whether this had been a miscommunication in the proposal, or is a reversal of their previous position, we welcome the now
unambiguous statement by .xyz that Internet users in China and worldwide will be free to register strings that offend the Chinese government in any of the .xyz registry's top-level domains.
US police groups are calling for a boycott of Quentin Tarantino's The Hateful Eight.
Local police organizations in New York, New Jersey, Chicago, Philadelphia and Los Angeles, the National Association of Police Organizations recently joined the ranks opposing Tarantino after remarks the director made during a recent rally against
police brutality. The National Association of Police Organizations said in a statement:
We ask officers to stop working special assignments or off-duty jobs, such as providing security, traffic control or technical advice for any of Tarantino's projects. We need to send a loud and clear message that such hateful rhetoric against
police officers is unacceptable.
The contention arose when Tarantino attended the Brooklyn rally against brutality on Oct. 24 and told The Associated Press:
I'm a human being with a conscience. And if you believe there's murder going on then you need to rise up and stand up against it. I'm here to say I'm on the side of the murdered.
The Hyatt Hotel Corp. has announced that it will pull all adult entertainment from its guest rooms worldwide. Hyatt said adult entertainment will be phased out as terms of contracts expire with each of the companies that provide Hyatt's in-room
TV shows, movies and other entertainment.
Hyatt is following the lead of Marriott International and Hilton Worldwide that have already begun to ban porn from in-room entertainment systems. Hyatt did not explain why it made the decision, saying only:
Hyatt has made the decision to stop offering adult entertainment video on-demand at any Hyatt hotel.
Industry commentators say that the decision to remove pornography has been partly motivated by a steady drop in revenue from in-room entertainment throughout the industry as more guests turn to the Internet to download movies, games and video
clips on their laptops and portable digital devices.
A recent study by PKF Hospitality Research found that annual hotel revenue in the United States from in-room movie rentals -- including adult films -- dropped from $339 per room in 2000 to $107 in 2014.