The Problem with Contracting Free Speech

It seems hard to believe that in this day and age of openness and over-sharing that free speech is still being threatened on the Internet, and yet a recent decision by a Virginia judge continues to extend this age-old trend.  A woman named Jane Perez is currently being sued by a former contractor for posting a bad review on Yelp—if she loses, Perez could be liable for up to $750,000.  Given the fact that the Virginia judge just issued a preliminary injunction in favor of the contractor, it seems that she might have to pay up after all—and for what?  Posting negative comments online about services she was unhappy with.

 

The only good thing to come out of the judge’s ruling this December was the fact that he refused to hold the actual websites—Yelp and Angie’s List—liable, thanks to that ever-useful Section 230.  But despite not touching that section, the judge’s decision is still incredibly damaging to advocates of free speech.  If his decision is upheld in the higher courts, the precedent it sets for online speech could immensely damage the current community online.

 

Consider the consequences of his decision: as the law stands now, online reviews of services are held as opinion, protected under the First Amendment of the Constitution.  This decision treats such reviews as statements of fact, able to be sued, liable to be treated as libel.  In essence, this decision could be interpreted as allowing online reviewers to be sued if they have an opinion the service provided is unhappy with—they didn’t like your product and said so on the Internet? Sue them.

 

I don’t think the chilling consequences of this decision can be overstated.  If it becomes common practice to sue individuals over reviews they wrote on the Internet, it will be common practice to no longer write reviews.  Considering that millions of customers these days rely upon other customer reviews in order to make shopping decisions, decisions to these could cripple the community currently in place, a loss for all but the service providers.

 

Now, it’s true that some of the things Jane Perez said had elements of fact in them.  She alleged that the contractor stole jewelry from her home, damaged it, and did not perform the work she contracted him to do.  Statements of fact, certainly, and if they were published in a newspaper, printed for all to see, her contractor have grounds to sue her for libel, providing of course, the facts were untrue.  But is it wise to treat Internet speech as the same as printed media, to treat online commenters as subject to the same penalties as newspaper corporations?  I think not, and I think that, if we do so, we may find that there are far fewer online commentators, and far fewer useful comments.

1 Comment »

  1. theolevine

    December 13, 2012 @ 4:52 am

    1

    In this case Perez spouted an opinion that her contractor was a poor choice and a bad contractor. She then went on to back that up with another opinion which was that Dietz, her contractor, had stolen from her house. The problem was that she presented this second opinion as a fact within her review on yelp. Websites like yelp that serve as a medium for user reviews have become so widely used that they are becoming somewhat like newspapers in their level of importance. There are two main reasons that it is illegal to libel someone in a newspaper. First, newspapers are generally held in very high regard by their generally extensive network of readers. Second, they claim to be presenting facts, things which cannot easily be verified by their individual readers, but are rather accepted and potentially utilized by the readers.

    Under these qualifications, it turns out that websites like yelp are actually becoming very similar to newspapers. The amount of people who use sites like this is enormous and is growing rapidly. People use yelp not only to find out information about companies that they are interested in, but also to find and filter lists of businesses that they could potentially use. For instance, “In 2011 a study by Harvard Business School found a link between an uptick in a Yelp! review rating and an increase in revenue for restaurants. On average, the study found, a one star increase on Yelp leads to a 5 to 9 percent increase in revenue for that particular restaurant.” This level of significance indicates that people greatly rely on information that they gain from yelp in order to make decisions that will impact their consumer practices.
    In addition, the main point of this case is the way in which Perez attacked Dietz. She did so by claiming that he had committed several crimes against her and essentially attempted to ruin the reputation of a man whose livelihood is dependent on a good reputation. In claiming that he stole from and vandalized her home, she essentially rendered him unhirable for anyone who reads her review, which is likely to be extensively read and believed. However, it turns out that Dietz was apparently not responsible for either of her charges. The police have not charged him for stealing and courts have dismissed charges stemming from the alleged vandalism. Thus it turns out that the so-called “factual” evidence that she spouted in her review was likely false. Because she did not present it as an opinion, but rather a statement of fact, she essentially sued Dietz for damages and hurt his business without ever succeeding in court.
    Freedom of speech is very important, but it must be used to help the public as opposed to hurting it. In this case, Perez had a clear course for how she should express her opinion; she should have said whatever she wanted on yelp as long as it was an opinion and not spuriously presented as a fact. In the meantime she should have continued her endeavors through the courts. It was not Perez’ duty to ruin another person’s career without any proof of her insinuations. The way through which she did so was and should be illegal.

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