California Bill Would Safeguard Consumers' Rights To Criticize Firms Online

An anonymous reader writes in with news about a California bill that aims to protect online reviewers’ rights."The proposed law appears to take aim at online licensing agreements that consumers often enter into with companies when they click through the many boilerplate terms and conditions of various online services. Buried deep in the small print of a number of these contacts are provisions stating that consumers agree not to write negative reviews about the service provider. 'If merchants think that our First Amendment free speech rights need to be curtailed, they should say so upfront and in plain language,' Pérez explained of the impetus for his bill, as reported by the Times."

Comments

Not First Amendment

[MetalliQaZ]

The First Amendment protects us from prosecution by the government. It doesn't protect us from civil matters with private companies. This Pérez guy should know that.

Re:Not First Amendment

[i kan reed]

Actually, there's certainly a case to be made that sense contracts are enforced by law, prohibitions are what laws can contain are essentially prohibitions are contracts.

For example, it's well understood that the 13th amendment prevents you from signing yourself away as a slave.

Re:Not First Amendment

[Anonymous Coward]

The problem is that EULAs shouldn't be able to over-ride constitutional rights, especially as a means of trying to cover up a bad product. If you buy a product and it is bad - doesn't work as advertised, poor quality, or whatever - you have the First Amendment right to, for instance, open up a personal blog and write a review of the product. What they're trying to do is quash bad reviews before they can pop up.

Re:Not First Amendment

[sexconker]

The First Amendment protects us from prosecution by the government. It doesn't protect us from civil matters with private companies. This Pérez guy should know that.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Congress makes laws. Corporations do not.
A contract limiting one's freedom of speech is entirely unenforceable, presuming our government is functioning properly.

If you sign an NDA, a "I won't post a bad review" clause, or whatever else, and then proceed to blab, you cannot be convicted of a crime. There is no crime and according to the First Amendment there can be NEVER be a crime based on speech. I am perfectly aware that our government is fucked up and we throw people in jail for speech.

You CAN be sued for any ACTUAL damages DIRECTLY related to your speech, IF it was defamatory / libelous.

You CAN be found to be in breach of contract, and subject to fines, termination of accounts, or whatever else you agreed to. Though you CANNOT be held to such terms if you didn't actually have a reasonable expectation to know about them. A contract is a legal meeting of the minds, and courts can and will throw out contracts when it's clear that they are presented in a dishonest, confusing, vague, or otherwise bullshit manner, or where it is clear there was no realistic expectation of all parties actually seeing, reading, understanding, and agreeing (see all the click-wrap horse shit, a site's terms of service, etc.).

Furthermore, Perez isn't stating that contracts between a private entity and an individual which have clauses restricting speech are unconstitutional - he's stating that such clauses need to be clear and upfront, and that sneaking them in is bullshit, as I've already explained. The bill reiterates that it's bullshit, and provides fines for assholes trying to write contracts in such a way.

Read the fucking bill:
http://www.leginfo.ca.gov/pub/...

This bill would declare a contract or proposed contract for the sale or lease of consumer goods or services unlawful if it contains a provision requiring the consumer to waive his or her right to make any statement regarding the consumer's experience with the business, unless the waiver was knowing, voluntary, and intelligent, as specified.

Re:Not First Amendment

[Jason Levine]

It's even worse than that. The article gives the example of a company, KlearGear, trying to charge a couple because they left a negative review of the company. The wrinkle in this case: The negative review was posted three years before the lawsuit and before the "you can't criticize us online" text entered into the EULA. So the companies don't just want you to agree to whatever is in their EULA, they think you accepting the EULA means you also accept any future version of the EULA no matter what restrictions get added on.

In the case of the couple, the charge was sent to a collections agency which hurt the couple's credit rating. They, in turn, sued KlearGear to have the debt declared null and void. When KlearGear didn't show up to challenge the suit, the judge ruled in favor of the couple. What would have happened had KlearGear had a better legal team, though? Even if they didn't win, they could have easily tied the couple up in court for months or years, forcing them to bankruptcy with legal fees, until the company settled out of court with the couple. (Perhaps dropping the original fee in exchange for no precedent being set against the company and maybe even some token amount that wouldn't even cover the couples' legal costs.)

I agree that agreements can over-ride constitutional rights in some cases. For example, if I sign an NDA, I'm restricting my freedom of speech in a certain regard. However, these agreements should only be done on when something needs to be kept under wraps (details of a new product shown to reviewers early, for example), not as a matter-of-normal-business instituted when anyone has even the slightest business association with the company.

Re:Not First Amendment

[sumdumass]

lol.. It's not quite that simple. The 13th amendment makes slavery and/or involuntary servitude illegal in the US and jurisdictions the US controls and grants congress the power to enforce it. Theoretically, you can sign yourself away as a slave in a foreign land- if it wasn't for the US government maintaining a claim of jurisdiction over US citizens wherever they go. (granted this jurisdictions is somewhat limited)

On the other hand, the first amendment says congress shall make no laws abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In this case, it is pretty clear what the intent was. Congress is not to make any laws. It doesn't say that you cannot contract your speech rights away with a third party or that the loss of free speech in any way is prohibited.

Now I know I left the religious freedoms portion off and I did that because it gets ignored quite a bit under the guise of separation of church and state which is no where in the first amendment.

Re:Not First Amendment

[i kan reed]

Yeah, that's because that's (currently) a stupid thing to be worrying about. And only an irredeemable idiot would seriously compare it to forced servitude.

Re:Not First Amendment

[uncqual]

See incorporation doctrine for more info on why most individual rights enumerated in the Bill of Rights can also not be infringed on by subservient governments. Prior to the early 1900's though, the Bill of Rights was understood to restrict only the Federal government.

Re:Not First Amendment

[duke_cheetah2003]

The First Amendment protects us from prosecution by the government. It doesn't protect us from civil matters with private companies. This Pérez guy should know that.

Except our government is pretty much run and owned by private companies now. So we should treat private companies much like we do our government. They're practically one and the same at this point.

Re:Not First Amendment

[jc42]

Congress makes laws. Corporations do not.

Of course not; that's why they give bribes (uh, I mean campaign contributions) to Congressional candidates (or to their "unaffiliated" support groups) to get the laws passed.

Re:Not First Amendment

[Darinbob]

I do read the EULAs much of the time. And whenever I find a clause that I disagree with I end up agreeing anyway because it's nearly impossible to get a refund and completely impossible to negotiate new terms.

This is like after college when I was at a job interview and I had to sign a piece of paper saying that I give up my right under a specific California law before I could start the interview. I needed employment, it was impractical for me to ask for a postponement while I paid to consult with a lawyer, so I was stuck with either sign and maybe get a job or don't sign and go away. So I signed it. Didn't get the job.

So the point is, people will click "I agree" even if they do read the EULA, they will sign on the dotted line even if they disagree, and so on. There really isn't a practical alternative. The remedy here is for governments to make laws disallowing this, or guaranteeing that rights can not be waived away, or restricting what can be included in a license agreement. Especially when it comes to seriously egregious violations of rights which are commonly asked for (requiring arbitration agreements, prohibiting class action suits).

Re:Not First Amendment

[mjwx]

On the other hand, the first amendment says congress shall make no laws abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In this case, it is pretty clear what the intent was. Congress is not to make any laws. It doesn't say that you cannot contract your speech rights away with a third party or that the loss of free speech in any way is prohibited.

Free speech in it's purest form means the government cant arrest you for what you say about the government. After that it gets open to interpretation.

However free speech does not protect you from criticism, nor doe it give you free license to say whatever you want wherever you want. There are restrictions on speech (the infamous "fire in a crowded theatre" example) and it does not protect you from the consequences of your speech.

Whilst I fully support your right to criticise other individuals and companies criticism must be truthful and accurate. Sadly most people who write criticism online are utterly incapable of this. Small complaints that may be easily addressed get blown completely out of proportion and much of it is outright fabrication because the critic is being emotive rather than rational. This gets to the point where people dont want their complaint redressed, rather they just want to hurt the company they feel wronged them. This is the secondary reason I dont rely on review sites like Yelp or Trip Advisor, the reviews are emotive rubbish and have no details (the main reason is because I'm not their client, I'm their product. Their client are the advertisers so the site will do what the advertisers demand, which is not in my interest).

I feel that some people go to far with criticism and enter the world of slander, companies and individuals should have the right to defend against this.

As I said, I fully support your right to criticise, but the people you criticise have the right of reply.

Re:Not First Amendment

[Rich0]

On the other hand, the first amendment says congress shall make no laws abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In this case, it is pretty clear what the intent was. Congress is not to make any laws. It doesn't say that you cannot contract your speech rights away with a third party or that the loss of free speech in any way is prohibited.

Yes, but in order to enforce that contract somebody would have to take you to court, and courts don't exist but for the laws that establish them. Congress isn't allowed to pass a law that creates a court that has the power to restrict somebody's freedom of speech, thus the courts that exist today aren't allowed to restrain people's speech. So, sure, you can put something in a contract restraining their speech, but no court is Constitutionally allowed to enforce such a clause.

This is what freedom means in the US

[i kan reed]

You're free to do what you want, and the government won't interfere...

Except for the literally tens of thousands of inane and pointless restrictions placed upon you by the one sided contracts that you must sign to take part in modern life.

Want a job so you can pay your expenses?
Better sign over your right to intellectual properties you create.
Want to get to that job?
Better sign over numerous detailed and unnecessary rights as part of your car loan.
Want to have shelter?
Here comes Mr. Landlord or Mrs. Deed Covenant.
Want to use basic tools to communicate?
Sure, we'll add limitations to your rights to random websites too.

Re:This is what freedom means in the US

[lgw]

Sure, if you want other people to do things for you, they might have some rules before they'll do those things. That's not a problem in and of itself, and isn't at all the point of this proposed law.

What you can't do is secretly add terms to a contract. Most states have rules about "boiler-plate contracts". If you stick an unusual requirement into a 30-page apartment lease, which otherwise looks like a customary lease, the burden of proof is on the landlord (the writer of the contract) to demonstrate that the renter knew about that clause. Because of that, you'll sometimes see leases where you have to initial a specific paragraph here and there to show you really read it before signing the lease, where those paragraphs weren't industry-standard.

This is that same idea for EULAs. You can't hide stuff in them - there's no "meeting of the minds" if you do - so wonky "you can't criticize us" rules should need the company to call special attention to them. It would be great to see state laws clarifying this sort of thing.

Re:This is what freedom means in the US

[fnj]

On the company's time? No.
Using the company's equipment after hours? Not if the company wants to be small minded.
On your own goddam time after working hours and using your own goddam equipment? That belongs to the individual, and not a goddam chance in hell any of it belongs to the company! (subject to details such as making improper use of company confidential information and the like)

How about make the agreements non-binding

[MobyDisk]

A better idea is to legislate that these licenses are non-binding.

What is plain language?

[kruach aum]

Not that I'm defending people who write contracts here, but the notion of plain language is not unambiguous. What counts as plain is dependent upon the reader's level of fluency, and because not all native speakers of a language have the same level of fluency the notion of 'plain' differs from person to person. The reason clauses of a contract or often not plain is because of the use of specialist language. However, that specialist language has a specific function: reducing ambiguity. In order to make a contract more plain, more commonly understood language needs to be used, but more commonly understood language is necessarily more ambiguous, and thus open for interpretation. If there's one thing no one wants it's that their rights critically depend upon the interpretative powers of another person. This is why the words "In a 5-4 decision, the supreme court..." inspire such dread.

Fight fire with fire

[Anonymous Coward]

You know how many online ordering sites have a comment box? How about entering, "By accepting my payment, you agree to make your EULA null and void."

different in practice

[mbkennel]

Because the person is getting a significant extra benefit---a substantial sum of money---as a primary, and clearly negotiated result of a contract about that very issue. I get X for Y.

It's completely different, for instance, if you take a taxi to the airport, and then find a submarine clause that your "taxi-use license" required you to pay the driver's fuel cost for the next year, and forbade you from telling anybody that the taxi company did this.

The usual is "get ride for money" or "get meal for money", not "get meal and gag order for money".

The real issue is with EULAs in general.

[TsuruchiBrian]

Rather than allowing EULAs written by companies, we should just have standard EULAs, for common types of products, and declare all other EULAs nonbinding.

I understand the need to have contracts that are nuanced, but for the kinds of contracts that you "agree" to simply by opening a box, should be standardized and devoid of any nefarious language.

I should not be able to send a letter to someone that says "By opening the envelope this letter arrived in, you agree to write me a check for $10,000, and failure to do so within 30 days will result in litigation" (and have it be enforceable). For the same reason, companies should not be able to have custom EULAs that are implicitly agreed to by opening a box or envelope.

Sure we can put the responsibility on the consumer to read every EULA for everything he/she buys from an OS to a bluetooth headset, but this is just a waste of everyone's time. We already invalidate stupid EULAs for being stupid. Lets just go one step further and make an implied boilerplate EULA that everyone is aware of and doesn't include anything shady.

Re:(currently)

[smittyoneeach]

Because the junkie never plans to overdose, right?
It's not that I think you shouldn't have the liberty to keep on plucking that chicken; my quibble is that those denying Basic Economics, like yourself, have decreed that the rest of us will go with you.
I promise I'll share some gruel with you while we're huddled for warmth below the overpass, and we review your "pretend fantasyland Austrian economics are valid" notion.