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

[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.

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."

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.

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.