California's AB 2365 which prohibits businesses and service professionals from contractually silencing customers who may want to complain about their experiences has been passed by California's legislature and is awaiting the approval of Gov. Brown. In layman's terms, the legislation generally prohibits a business from inserting into its adhesion contracts and terms of service language that requires a consumer to waive their right to publicly comment about their customer experience on websites such as Yelp, Ripoff Report, etc...
At first glance, this bill may sound like the government passing legislation that is looking for a problem. Unfortunately, this legislation is needed because some dishonest retailers, service professionals, etc.... are including in their agreements clauses that ban their customers/clients from truthfully telling the world about their negative experiences.
Earlier this year, I discussed the Kleargear.com case. In short, the retailer failed to deliver on its promise and the customer complained online about it on Ripoff Report. Sometime after the customer complaint was posted, Kleargear.com inserted these clauses into their terms of service:
"In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.
Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid."
Kleargear.com sent the customer a bill for $3,500 for allegedly violating the above terms. After the customer refused to pay, Kleargear.com reported the matter to credit rating agencies, claimed the terms were in effect at the time of the customer interaction and this negatively affected the customer's credit report. In response, the customer sued Kleargear.com and was awarded more than $300,000 in compensatory and punitive damages.
For those who may not believe this is a growing trend, another recent example demonstrates the need for this legislation. The New York Post earlier this month exposed a hotel that inserted into its agreements the ability to fine its guests $500 for negative online reviews. I am also aware of multiple non-publicized similar matters where people have publicly complained about a service provider and when the business became aware of the complaint they threatened the reviewer with a lawsuit.
In America, we have fought multiple wars for the right to complain freely about bad politicians, governments, etc... so I believe we should have the right to also complain freely about bad private sector service. While I wish this bill wasn't needed, the insertion of non-disparagement clauses into legally binding agreements appears to be a growing trend. From a public policy perspective, since we live in a free and democratic society it makes sense to protect consumers from repugnant restrictions on publicizing personal opinions.
Copyright 2014 by Shear Law, LLC All rights reserved.
Showing posts with label Social Media Public Policy. Show all posts
Showing posts with label Social Media Public Policy. Show all posts
Saturday, August 30, 2014
Tuesday, October 22, 2013
Facebook criticized for ending ban on beheading videos
Facebook has recently announced that it will end its ban on beheading videos. Within hours after announcing that it was lifting its ban, it was criticized for its new policy. This change caused such an uproar that even British Prime Minister mentioned his dismay about it.
Facebook is a private entity and if you want to utilize its platform you need to play by its rules. It creates policies to drive as much traffic to its web site as possible. The more users/eyeballs the more advertising dollars. The more advertising dollars it generates the more profits that may be sent to its stockholders. Facebook is not in the privacy and censorship business but in the digital monetization business.
Parents and politicians need to understand that Facebook was not created as a sanitary place for kids to "hang out". Facebook was created by Mark Zuckerberg to encourage Harvard college students to meet and interact with other college students to do "grown up things". The sooner people realize this the better.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Facebook is a private entity and if you want to utilize its platform you need to play by its rules. It creates policies to drive as much traffic to its web site as possible. The more users/eyeballs the more advertising dollars. The more advertising dollars it generates the more profits that may be sent to its stockholders. Facebook is not in the privacy and censorship business but in the digital monetization business.
Parents and politicians need to understand that Facebook was not created as a sanitary place for kids to "hang out". Facebook was created by Mark Zuckerberg to encourage Harvard college students to meet and interact with other college students to do "grown up things". The sooner people realize this the better.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Tuesday, December 13, 2011
Student-Athlete Suspended From NCAA FCS Playoffs For a Re-Tweet
The NCAA does not have an official social media policy for its members. Despite the lack of a social media policy, the NCAA suspended Lehigh University's Ryan Spadola who was the football team's top wide receiver from a playoff game for retweeting an alleged inappropriate message. This suspension may have harmed Lehigh's chances of winning the NCAA Football Championship Subdivision since Lehigh lost the game that Spadola was banned from.
Playing collegiate sports is privilege and not a right. Ryan Spadola apologized for the tweet and appeared contrite over his actions. However, the NCAA still made an example out of him. This teachable moment has turned into a situation that may have major legal ramifications in the future for similar situations. What if instead of retweeting an alleged racial slur Spadola provided his opinion about the President of the United States and the NCAA disagreed with his Tweet? Would Spadola have been banned from the playoffs?
The NCAA must tread very carefully in the social media space because its actions may open itself and/or its members to massive legal liability that may not be anticipated. Those who advocate that student-athletes be mandated to turn over their private social media user names and passwords and/or allow schools access to students' private electronic content, and/or install spying software onto students' personal electronic devices may be uninformed of the law and the public policy implications. Ohio's Supreme Court ruled almost 2 years ago that while under Ohio's jurisdiction a warrantless search of electronic devices is barred in most situations. The New York Times subsequently wrote an editorial that stated that this should be the law throughout the country.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Playing collegiate sports is privilege and not a right. Ryan Spadola apologized for the tweet and appeared contrite over his actions. However, the NCAA still made an example out of him. This teachable moment has turned into a situation that may have major legal ramifications in the future for similar situations. What if instead of retweeting an alleged racial slur Spadola provided his opinion about the President of the United States and the NCAA disagreed with his Tweet? Would Spadola have been banned from the playoffs?
The NCAA must tread very carefully in the social media space because its actions may open itself and/or its members to massive legal liability that may not be anticipated. Those who advocate that student-athletes be mandated to turn over their private social media user names and passwords and/or allow schools access to students' private electronic content, and/or install spying software onto students' personal electronic devices may be uninformed of the law and the public policy implications. Ohio's Supreme Court ruled almost 2 years ago that while under Ohio's jurisdiction a warrantless search of electronic devices is barred in most situations. The New York Times subsequently wrote an editorial that stated that this should be the law throughout the country.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Cleveland's Social Media Criminal Law May Affect Terry Stop and Frisks
I have previously discussed Cleveland's prior misguided attempts to create ambiguous social media law. Cleveland has finally passed a law that may criminalize social media. This new ordinance (see page 25, sections 1392-11, 1393-11 and 1394-11) that allegedly is aimed at trying to curb flash mobs is very troubling and may create unanticipated problems that were not envisioned by its sponsors.
Will Cleveland police officers during a Terry Stop and Frisk check to see if someone is carrying a digital weapon (personal electronic device) instead of a physical weapon (gun or a knife)? Will this new ordinance change the Stop and Frisk procedures in Cleveland? Was this question even imagined by those who voted in favor of this ordinance?
Fortunately for those who live and/or visit Cleveland, the Ohio Supreme Court ruled a couple years ago that while under Ohio's jurisdiction people have an expectation of privacy regarding the content on their cell phones. Therefore, the potential for abuse of this new ordinance may be less than what it may have been had the Ohio Supreme Court not been so enlightened.
As I previously stated, this law is vague and will only create more problems than it will solve. The tremendous disconnect between social media and government policy continues.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Will Cleveland police officers during a Terry Stop and Frisk check to see if someone is carrying a digital weapon (personal electronic device) instead of a physical weapon (gun or a knife)? Will this new ordinance change the Stop and Frisk procedures in Cleveland? Was this question even imagined by those who voted in favor of this ordinance?
Fortunately for those who live and/or visit Cleveland, the Ohio Supreme Court ruled a couple years ago that while under Ohio's jurisdiction people have an expectation of privacy regarding the content on their cell phones. Therefore, the potential for abuse of this new ordinance may be less than what it may have been had the Ohio Supreme Court not been so enlightened.
As I previously stated, this law is vague and will only create more problems than it will solve. The tremendous disconnect between social media and government policy continues.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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