While state and federal lawmakers look for ways to outlaw retail terms of sale that penalize customers who publicly complain about a transaction, one diet supplement company is going after an online complaint site just because it allowed customers to post negative reviews in violation of the supplement company’s non-disparagement clause.
In general, the Communications Decency Act shields operators of online forums from being held liable for things posted by users. But a lawsuit [PDF] filed last month in a Florida state court [and subsequently relocated to a U.S. District Court] claims that one complaint-oriented website goes beyond merely allowing users to post their stories.
According to the complaint, the site walks users through the process of posting a complaint, requiring that they fill in certain fields and mandating minimum lengths for each complaint.
Additionally, the site offers advice on what makes a good complaint and allows users to pay a premium to raise the public profile of their post. This is tantamount to turning complaints into advertising, allege the plaintiffs.
The supplement company also takes issue with the site’s Twitter account, which sends out Tweets regarding complained-about companies without attribution to the original poster.
To the plaintiff, this all elevates the site to the level of being a co-author, which it believes would make the site liable if any of the complaints are libelous.
And even if they’re not, contends the supplement company, its customers have agreed to a non-disparagement clause that prevents them from speaking, publishing, printing, printing, blogging, or writing anything negative about the company, “regardless of their outcome… in any forum.”
They claim that allowing customers to share their complaints on the site means the forum did “deliberately and tortuously interfere” with the weight loss customers by encouraging them to breach their non-disparagement agreement.
In a response [PDF] filed with the court last week, the website contends that the supplement company is using this non-disparagement clause to hide a sub-standard product.
“Does that sound like an upstanding company that stands behind its safe and reliable product?” asks the defendant. “Or does that sound like a disreputable company, producing tubs of snake oil (or snake goop, as it were), and which knows that too much truth will hurt its fly-by-night bottom line?”
Since it would be a violation of the rule against prior restraints to force the website to take down complaints without proving the statements are indeed libelous, the defendant says the weight loss company is trying to use state consumer protection laws and tortious interference claims to have the complaints removed without having to dispute their truthfulness.
“But, no matter many times you call a ‘dog’ a ‘duck,’ it will neither lay eggs nor quack,” reads the site’s response. “Styling a baseless defamation claim as something else does not shield it from First Amendment scrutiny and render palatable the most odiferous and despised remedy known to our courts – the prior restraint.”
Beyond that, the site contends that even if the court were to eventually find the complaints libelous, the weight loss company should not be able to receive an injunction preventing future comments about its products, as that would just be another form of prior restraint, preventing speech before it has spoken.
As for the claims of tortious interference, the defendant says the plaintiff fails to show that the website knew of the non-disparagement agreement between its users and the weight loss company, that the website actively interfered with that relationship, and that the alleged interference damaged the plaintiff.
Regarding the non-disparagement clause, the defendants claim there is no way they could violate those terms, as a “contract does not bind one who is not a party to the contract, or who has not agreed to accept its terms.”
Even so, the defendants maintain that the actual terms of that contract are so unconscionable as to be unenforceable.
“Preventing customers from providing their opinion… is not a legitimate business interest, but instead is itself a deceptive trade practice,” reads the response. “Any act ‘which unfairly takes advantage of the lack of knowledge, ability, experience or capacity of a consumer; or results in a gross disparity between the value received by a consumer and the price paid, to the consumer’s detriment’ constitutes an unconscionable trade practice.”
According to Ars Technica, a hearing in this case is scheduled for Oct. 8.
And since we’re talking about prior restraint, we bring you this bit of First Amendment insight (NSFW language) from the indomitable Walter Sobchak:
by Chris Morran via Consumerist
What season is it? We can’t blame shoppers for being confused when they wander into this seasonal mashup at Menards. When the timing is a little off in a store’s Seasonal section, things get kind of strange. Of course, Christmas stuff out on display in late September is no longer jarring to Consumerist staff. If it’s after Labor Day, Christmas merchandise on the shelves no longer fazes us. With patio furniture, though?
