Roca Labs Sues Customer For Posting A Negative Review

from the that'll-win-new-customers,-i'm-sure dept

We've been covering the saga of Roca Labs for a few days now. This is the company that claims to make an "alternative" to gastric bypass surgery in the form of some "industrial food thickening agents" that (the company claims) will fill up your stomach and make you not want to eat. These claims are not FDA reviewed and an examination of the claims by a doctor found them to be questionable (to say the least). We became aware of the company because it had sued Consumer Opinion Corp., the company that owns the site PissedConsumer.com. The issue? Roca Labs has a terms of service that offers everyone a "discount" on its product if you agree to never, ever, say anything bad about the product ever (you also have to agree to share success stories with Roca and allow them to publicize those stories). In short, the terms of service are designed to only show positive results, and gag any negative results. Roca claims that it has to do this because results may vary, and negative results could be caused by other factors. Of course, doesn't that also mean that positive results could be caused by other factors as well?

Either way, Roca Labs sued PissedConsumer on the hilarious legal theory that by offering a forum for unhappy customers to post their story, it was "tortious interference" because it encouraged people to break the terms under which people bought the product. As we noted, this legal theory is fairly laughable, and PissedConsumer's legal response makes that fairly clear as well.

However, Roca Labs and its lawyers are apparently busy. They're not just suing PissedConsumer, but they're actually suing a customer who complained to the Better Business Bureau for "breach of contract" and "defamation per se." While her filing with the BBB included some statements that might reach the level of defamation, amusingly, Roca Labs does not attempt to show that her comments were false in any way. Rather, it relies on yet another ridiculously questionable term in its terms of service, saying that if you post something negative, it will automatically be considered "defamation per se." Here's the term:

You agree that any such negative claim will constitute defamation per se

I don't think that's how defamation law works. At all. Even if this woman's comments to the BBB are defamatory (and I'm not saying they are), you can't just have someone sign a contract saying that if they do something, they'll be guilty of defamation.

Either way, all of this should make you wonder just what sort of company Roca Labs is in that it seems to not just sue its own customers for negative reviews, but to work so hard to stop negative reviews and to threaten and intimidate those who make complaints about their experience with the company.

Filed Under: contract, free speech, gastric bypass surgery, negative reviews, reviews, tortious interference
Companies: pissedconsumer, roca labs

Federal Legislation Introduced To Strengthen Consumer Free Speech Rights Online

from the about-time dept

Last week, Tim Cushing wrote about California's new law that outlaws consumer-silencing non-disparagement clauses. Apparently momentum is on consumers' side, as Rep. Eric Swalwell, along with Rep. Brad Sherman, introduced similar federal legislation this week to protect all consumers from this shady tactic.

The bill, cited as the "Consumer Review Freedom Act of 2014," voids any provision of a contract that:

1. prohibits or restricts the ability of a person who is a party to the form contract to engage in a covered communication;
2. imposes a penalty or fee against a person who is a party to the form contract for engaging in a covered communication; or
3. assigns or provides an exclusive license, or requires a person who is a party to the form contract to assign or provide an exclusive license, to any business, other person, or entity any intellectual property rights that such party to the adhesion contract has or may have in a covered communication.

The bill later defines "covered communication" as "a person's written, verbal, or pictorial review, performance assessment of, or other similar analysis of, the products, services, or conduct of a business which is a party to the form contract."

While the bill does not specify fines for violations like California's new law, it is still a step in the right direction (and better than nothing).

In his press release following the introduction, Swalwell said, "No country that values free speech would allow customers to be penalized for writing an honest review. I introduced this legislation to put a stop to this egregious behavior so people can share honest reviews without fear of litigation. I look forward to advancing this in a bipartisan manner, and protecting the right to speak one's mind."

Swalwell also cited Palmer v. Kleargear.com in his press release (the case involving a couple from Utah who was fined $3,500 by KlearGear for violation of a non-disparagement clause after they posted a negative review online about their experience with the company).

Palmer is just one example of recent headlines that shed light on the problem of non-disparagement clauses. From a hotel in New York that threatened to charge guests $500 for posting negative reviews online, to a contractor who voided his client's warranty because of a negative online review, numerous examples over the past few years have shed light on this shameful practice by businesses.

Though this is not an entirely new phenomenon. Consumers have been getting hit with Strategic Lawsuits Against Public Participation (SLAPPs) for years, where a plaintiff files a meritless lawsuit against a consumer for posting a negative review online. Yet, now businesses are attempting to avoid having to file a SLAPP by burying non-disparagement clauses in the fine print of consumer contracts.

Both tactics by businesses are aimed at chilling the First Amendment rights of consumers. Here's hoping Rep. Swalwell's bill becomes law and that federal anti-SLAPP legislation follows suit.

Evan Mascagni is the Policy Director of the Public Participation Project (www.anti-slapp.org), a nonprofit organization dedicated to enactment of strong federal and state legislative protections against SLAPPs.

Filed Under: brad sherman, consumer review freedom act, eric swalwell, free speech, non-disparagement clauses, reviews

California Outlaws Consumer-Silencing Non-Disparagement Clauses

from the seeking-redress-in-form-of-head-punching-tabled dept

In one state, at least, non-disparagement clauses like the one KlearGear tried to use to extract $3,500 from unhappy customers, will be illegal. California governor Jerry Brown has just signed a bill that will prevent companies from silencing customers with non-disparagement clauses buried in Terms and Conditions pages.

Here's the relevant text of the bill:

(a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.

(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.

(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.

Violating this could result in a fine of $2,500 for a first violation (up to $10,000 for "flagrant" violations), which unfortunately means KlearGear (which is specifically referenced in the discussion of the bill) would still net $1,000 -- at least the first time it gets away with it. (Which it hasn't, and apparently never will -- that clause has been removed from its website. Also, no one can seem to find an actual human being connected to the company selling so much stuff it can barely be described in a ridiculous press release.) Since most companies aren't willing to charge the equivalent of a low-end used car for negative reviews, this bill pretty much ensures no one will be seeking to enforce non-disparagement clauses in California. Simply having the clause -- even if it's never enforced -- could result in a fine.

This is a win for consumers, at least as far as it can be enforced. As has been noted here, there's more than a few companies combining crappy service with hefty fines that don't seem to actually exist outside of a Mailboxes, Etc. addresses. Laws are tough to enforce when you can't find anyone to hold accountable. The worst part is that by the time most consumers discover they're dealing with a company that will charge them for negative reviews, these companies already have their credit card information and can start adding these charges to their balances.

The good news is that it's illegal in this state. Preemptive action can be taken to uncover these illegal terms and conditions in order to either push the companies towards complying with the state law or (better) getting them to drop these clauses altogether.

A law preventing these is good, and there needs to be more of them, but the best steps are still preventive. Plenty of sites keep an eye out for consumers and are usually the first to call out this behavior. Enough public outcry and these sites are either blackballed or shuttered completely. The threat of enforcement may be enough to deter some behavior, but when it comes down to it, the entity that best serves the public's interests is still the public.

Filed Under: california, free speech, non-disparagement clauses, opinions, reviews
Companies: kleargear

'Dietary Supplement' Company Tries Suing PissedConsumer, Citing Buyer's Agreement To Never Say Anything Negative

from the good-thing-we-never-bought-anything-from-roca-labs dept

Roca Labs is a company that describes itself as a manufacturer of "dietary supplements" some of which they label with highly questionable claims that I imagine would not be supported by anything the FDA would consider to be credible evidence. In particular, they have something called "Gastric Bypass Alternative" which claims to help people lose weight -- though I would treat such claims skeptically without further proof. Indeed, it appears that many of Roca Labs' buyers are not happy about it. The Better Business Bureau gives Roca Labs an F grade due to the large number of complaints, many of which remain unresolved. Meanwhile the site PissedConsumer also has a bunch of complaints about Roca Labs and its products -- and it appears that the PissedConsumer page ranks rather highly on Google for searches on Roca Labs. Roca Labs is -- apparently -- not happy with that.

So it has now sued the parent company of PissedConsumer, Consumer Opinion Corp, trying to get the reviews taken down. The lawsuit is worth reading. It claims that PissedConsumer is engaged in "deceptive and unfair trade practices" and that part of this is... because customers of Roca Labs agree to never say anything negative about the company.

Roca sells its products directly to the public and in exchange a discounted price, Roca's customers agree under the terms and conditions of said purchase that regardless of their outcome, they will not speak, publish, print, biog or write negatively about Roca or its products in any forum.

Of course, any such agreement is of questionable legality. However, we've certainly been seeing a lot of these questionable "no negative reviews or you pay" agreements showing up lately.

But, you say, PissedConsumer isn't the issue here, right? After all, the company never agreed to those conditions, even if the buyers did agree to them (whether or not they're legally sound). Roca is trying to get around that by arguing that because it has this clause and because PissedConsumer urges angry consumers to complain, the company is "tortiously interfering" with Roca's business because it's encouraging people to break the agreement. I'm not joking.

Defendants deliberately and tortiously interfere with Roca Lab's customers by encouraging them to breach their customer agreement with Roca as Defendants author or co-author false, malicious and negative posts about Roca that are published on their subject website and Twecred to Twitter's 271 million users.

Where to start? First of all, no. Almost everything there is ridiculous. Presenting a platform for people to express their own opinions is not encouraging them to break any contract (which, again, is of dubious legality in the first place). Second, the site is not authoring or co-authoring the posts. Third, there's no evidence that anything being posted is "false." Fourth, what does Twitter's total user base have to do with anything? It appears that @PissedConsumer's account has a few thousand followers.

None of this matters anyway, because even if any of the other arguments made sense (and none of them seem to make much, if any, sense) PissedConsumer is clearly well protected by Section 230 of the CDA, which protects websites from the actions of their users. And, of course, PissedConsumer and its legal team are well aware of all this having hit back at previous bogus legal threats in the past. I don't expect Roca Labs will get very far with this complaint. However, if you'd like to see which complaints Roca Labs especially wants deleted, check page four of the complaint below, where the company conveniently lists out the statements it doesn't like. And, because they're so wrong on just about every other legal claim, it seems worth noting that many of them are clearly statements of opinion, rather than anything that would be clearly defamatory anyway (and if they were defamatory the company would need to go after those individuals who made them in the first place, rather than the company hosting the content).

Filed Under: dietary supplements, gastric bypass alternative, opinion, pissed consumer, reviews, secondary liability, section 230
Companies: consumer opinion corp., pissedconsumer, roca labs

Another Online Retailer Thinks It Can Charge Customers For Complaining; Now Facing Lawsuit In New York

from the the-way-to-make-money-without-providing-products-or-services dept

KlearGear's unprecedented $3,500 charge for customer complaints tossed whatever little reputation it had down the drain and it's abusive actions earned it a $300,000 judgement when a former customer took it to court. Of course, the company only exists as a half-assed website and handful of remailing services. Someone named Vic Mathieu claimed the company is actually run by Descoteaux Boutiques out of France, and as such, is out of reach of the judgement.

The Consumerist has come across another online retailer that thinks it can charge customers if they even think about complaining, one that also has no real representatives and whose address is a UPS store.

If you were put off by KlearGear.com’s ridiculous “Non-Disparagement” fee, which penalizes customers for sharing their bad shopping experiences with the public, another online retailer is apparently trying to go one further, by not only banning customers from saying bad things online, but by also forbidding them from even bringing up the threat of a complaint or a credit card chargeback.

Buried at the bottom of the Terms page for OnlineAccessoryOutlet.com, you’ll find the following insanely overreaching stipulations (bolded for emphasis):

“You agree not to file any complaint, chargeback, claim, dispute, or make any public forum post, review, Better Business Bureau complaint, social media post, or any public statement regarding the order, our website, or any issue regarding your order, for any reason, within this 90 day period, or to threaten to do so within the 90 day period, or it is a breach of the terms of sale, creating liability for damages in the amount of $250, plus any additional fees, damages – both consequential and incidental, calculated on an ongoing basis.”

The Terms also claim the customer agrees that, even after the 90 days are up, the “sole method of dispute resolution in all cases… shall be binding arbitration to take place in New York City, with all expenses paid by the respective parties.”

Yes, this is from the same company that states this on its About Us page:

We stand behind every sale and make every effort to satisfy each customer. Our goal is to ensure each customer has the most pleasurable and stream-lined ordering process when using our site, and that they save the most money always.

Nothing about the company's reputation backs that up. In addition to the experience of the customer filing a lawsuit against Accessory Outlet (with the assistance of Public Citizen -- PDF link), numerous complaints can be found elsewhere on the web. Almost every complaint is the same: Accessory Outlet ships crappy knockoffs of name-brand products... if it ships anything at all. Customer service, what there is of it, largely consists of stalling tactics and threats.

There's nothing customer-friendly about its Terms of Service and its return policy is just as antagonistic.

Final sale items may not be returned or exchanged for any reason - they are sold as-is, with all sales final… Additional Restrictions: All Lifeproof, Otterbox, Mophie and Apple brand products are not eligible for return or exchange for any reason. Special order, customized, or personalized items are not eligible for return or exchange for any reason. All cosmetic items are not eligible for return or exchange. All refurbished/reconditioned products are final sale, with no returns or exchanges permitted.

Oddly enough, Lifeproof, Otterbox and Apple products are the ones listed most in complaints. According to customers, these are not authentic products, but are cheap knockoffs with design issues and cosmetic flaws. Some are completely unusable.

Trying to cancel or modify an order after submitting will also trigger a $250 fee. "Breaching" the extremely restrictive return/exchange policy will do the same thing.

The ultimate problem here is not just the lousy products backed by worse policies enforced by truly abysmal human beings. It's that Online Accessory Outlet is nothing more than a roving scam operation designed to take money from people in exchange for terrible products. The company has no real address, no real point of contact and has operated a variety of websites featuring the same products and policies. Everything posted on its site with the intent of touting its "trustworthiness" is a lie, as the Consumerist discovered.

For fun and giggles, we’ve written to the three other organizations touted on the site — Angie’s List, buySAFE, and Trusted Shops — to confirm that these endorsements are also false.

We’ve heard back from a rep for buySAFE, who confirmed that Accessory Outlet is not certified.

“The seal you see is an old, bad copy of a buySAFE seal,” explains the rep.

And a rep for Angie’s List says there is no way Accessory Outlet could have won a Super Service Award — which requires perfect scores — because it has no reviews on the site.

“They have no reviews, which equals no grade,” explains the Angie’s rep. “They aren’t SSA winners and shouldn’t be using the badge.”

And a rep for Trusted Shops, which does not certify companies in the U.S. says Accessory Outlet is definitely not certified by the service.

The lawsuit names "Accessory Outlet" at onlineaccessoryoutlet.com. But the Better Business Bureau -- while noting that the company does not have the A+ rating it claims to on its website -- lists two other URLs the company has used.

http://www.eaccessoryoutlet.com/

http://www.trueaccessory.com/

The first URL redirects to onlineaccessoryoutlet.com and the other to nothing at all. It has also done business as Acctown (also with an F rating from the BBB), which still has a functional website and carries much of the same wording in its Terms of Service (although there is a $50 price break -- $200 instead of $250 for thinking about complaining). It may be even worse, considering simply using the website supposedly makes you subject to the terms and conditions.

You agree not to file or initiate any complaint, chargeback, dispute, public comment, forum post, website post, social media post, or any claim related to any transaction with our website and/or company. By using our website, making any purchase, or conducting any transaction with us, you agree to all terms and conditions stated herein. Any action in breach of this agreement that causes reversal of any payment in full or in part shall result in a collections action for the full or partial order total (the amount reversed) plus an additional $50. You agree that any breach of this agreement shall also constitute liability in the amount of $200 plus any related costs directly or indirectly relating from any such breach. These costs shall be collected using a collections agency and/or civil action in New York. You agree that the exclusive forum for any dispute or claim relating to any transaction conducted through our website shall be New York.

Acctown also has its own set of complaints about shoddy products and orders that never arrived.

The current address for Online Accessory Outlet is a remailer. Its contact person (found through complaint sites, not its actual site) is likely as authentic as the glowing 5-star reviews artificially pumping up its rating (as True Accessory) at TrustPilot. Roger Klein, the supposed "Marketing Director" of True Accessory/Online Accessory Outlet updated the company's Manta profile at some point, claiming it's been in business since 2011. True Accessory's history at the Internet Archive only traces back to early 2014, which is in line with the complaints filed. (Feb. 2014 is the first archived version. Complaints begin piling up in March.) The horrendous terms of service went into place almost immediately, although the fees started at $200 rather than $250. Despite the website being shut down, a Facebook page for True Accessory (sporting a very suspicious 2,158 likes) is still live, though apparently unattended.

Unlike KlearGear, contact through email has been successful for customers with complaints, although those complaints are met with threats. (Its only listed phone number now simply states "Customer service is not available" and dumps you directly into voice mail.) From the lawsuit:

Accessory Outlet emailed Cox back, stating that Cox would face a $250 penalty for contacting her credit card company, that Accessory Outlet would send her account to a collections agency, and that "[t]his will put a negative mark on your credit for 7 years and will also result in calls to your home and/or work." The email continued: "Further, additional fees for any correspondence with your card issuer will also be billed to you on an hourly basis and a flat rate $50 fee for the dispute or claim."

A later email was even more direct about the company's desire to punish Cox for complaining.

Contact your lawyer, spend more time and money if you wish. You will be billed and the amount we will bill you for will continue to rise with every email and every second we dedicate to correspondence of any kind pertaining to your breach of the terms of sale. Thank you.

The problem with pursuing shady companies like this is that there's no one to hold accountable. Multiple addresses and multiple URLs suggest someone's trying to make as much money as they can before being forced to bury one name and resurface as a "new" business. So, all you can do is try to steer people away from these companies. The Streisand Effect is greatly blunted when the entity on the other end obviously doesn't care what customers think of them, just as long as it attracts enough suckers to make its sales of cheap knockoffs profitable.

Filed Under: clickwrap, credit score, criticism, retailer, reviews
Companies: accessory outlet, kleargear, online accessory outlet, onlineaccessoryoutlet

EFF Files Amicus Brief In State Supreme Court Appeal Of Case Threatening Anonymous Speech

from the should-be-protecting-all-speech,-not-just-the-stuff-you-like dept

The EFF has filed an amicus brief in a case involving a business suing anonymous reviewers for defamation. In 2013, Hadeed Carpet Cleaning took seven anonymous Yelp reviewers to court over allegedly defamatory reviews. It asked the court to unmask the people behind the reviews, claiming that they weren't customers and therefore, their reviews were false and defamatory per se. Yelp, the host of the contested reviews, refused to comply with the subpoena, arguing that it didn't meet the constitutional requirements needed to override First Amendment protections.

Unfortunately, the state of Virginia has a much lower bar for plaintiffs to hurdle in unmasking anonymous commenters and reviewers. The Dendrite rules, which have been applied in a number of states, weren't used in this case. Instead of having to prove that these reviewers had definitely broken the law, all Hadeed had to do was show the court that it had a "good faith basis" for believing the reviews were defamatory. Hadeed never contested the content of the reviews, but rather relied on the assumption that these reviews weren't posted by actual customers and, almost solely because of this, were actionable.

The EFF notes in that the lower court decisions took this low bar and went even lower, threatening to make Virginia a very dangerous place for anonymous speech, especially if it continues to place its state laws above the First Amendment.

Hadeed alleged that the reviewers aren't actually customers, but the lower courts didn't require it to provide proof. Nor did Hadeed show how the reviews were defamatory. Whether or not what Hadeed claimed was enough under Virginia law, the First Amendment requires significantly more evidence of defamation.

The brief itself points out that stripping away the protection of anonymity will just encourage further bad behavior from a variety of bad actors, who will be able to use subpoenas to expose their critics and subject them to further harassment.

Amicus EFF has witnessed these tactics at work firsthand. By bringing an ultimately frivolous lawsuit, litigants often seek to unmask anonymous speakers in order to humiliate them or discourage their speech. Thankfully, most courts have been aware of the harm that would flow from allowing such baseless subpoenas to issue without first considering the justification for unmasking these individuals…

The use of harassing subpoenas is also a favorite tactic in online copyright infringement litigation. In a typical case, the owners of adult movies file mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lump hundreds of defendants together regardless of where their Internet Protocol addresses indicate they live. The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography, as well as the accompanying costs of litigation, to wield as a sword to coerce settlement payments of several thousand dollars from each of these individuals…

The brief also argues that while anonymity is not guaranteed and can be removed under certain circumstances, the plaintiff's arguments haven't met these requirements.

All parties to this dispute agree that the constitutional privilege to remain anonymous is not absolute. Plaintiffs may properly seek information necessary to pursue reasonable and meritorious litigation. As the Court of Appeals put it, “if the reviews are unlawful in that they are defamatory, then the John Does’ veil of anonymity may be pierced, provided certain procedural safeguards are met.” (“Certain classes of speech, including defamatory and libelous speech, are entitled to no constitutional protection.”).

Rather, the dispute is as to the proper standard to apply in deciding whether to uphold the reviewers’ anonymity. The Court of Appeals rejected the guidance of numerous other state courts, including the leading case of Dendrite, and instead held that Virginia Code § 8.01-407.1 provides the sole standard for Virginia courts faced with unmasking anonymous speakers. This conclusion should be reversed because this interpretation of § 8.01-407.1 fails to meet the minimum standards of the First Amendment.

And if all of that fails to resonate, the EFF says there's also some jurisdictional questions with further First Amendment implications. Yelp's headquarters are in California and Hadeed should be filing its subpoenas there. Of course, the higher standard in California most likely means they would be rejected. But if the lower court's decision holds, people and companies looking to unmask anonymous commenters and reviewers will be making libel tourism stops in Virginia.

The lower court’s departure from standard practice means that Yelp is now subject to Virginia’s subpoena standards, rather than California’s. Under the rule that the lower court has adopted, Virginia’s subpoena jurisprudence can apply across the country. An enterprising plaintiff could file subpoenas in Virginia, knowing that Virginia has adopted a more lenient standard than its fellow courts. Non-parties would have to fight their requests in Virginia courts rather than the courts where the documents were stored, at additional and considerable expense. This is particularly problematic where, as here, the subpoena requests implicate First Amendment interests, which states are obligated to uphold on behalf of their citizens…

While there are many people who argue that online anonymity is just a way for people to say whatever they like without consequence, there's much more to it than insults, trolling and 4chan. The protections of anonymous speech date back to the founding principles of this country, predating the internet's rise as the simultaneous best/worst thing to happen to the world.

Online anonymity needs more protection than the state of Virginia is willing to afford it. The lower court set the bar for unmasking at toe-stubbing level and, if the state Supreme Court upholds it, will make Virginia the new home for the "tyranny of the majority." Hopefully, the state's top court will realize that it's also protecting the rights of American citizens, not just local businesses whose approach to criticism is to start filing lawsuits.

Filed Under: anonymity, dendrite rules, free speech, reviews, virginia
Companies: eff, hadeed carpet cleaning, yelp

New York Guest House Burns Own Reputation To The Ground By Trying To Charge Customers $500 For Bad Reviews

from the not-so-much-a-T&C-page-as-it-is-a-suicide-note dept

The Union Street Guest House in Hudson, New York, joins the small group of businesses who have attempted to levy fees against customers who leave negative reviews. It's an exclusive group that no business should want to be a part of, one that includes the infamous and possibly French geek gadget re-shipper KlearGear.

Page Six was the first to report on this customer-unfriendly clause residing in the rental terms and conditions:

If you stay here to attend a wedding and leave us a negative review on any internet site you agree to a $500. fine for each negative review.

If you have booked the Inn for a wedding or other type of event anywhere in the region and given us a deposit of any kind for guests to stay at USGH there will be a $500 fine that will be deducted from your deposit for every negative review of USGH placed on any internet site by anyone in your party and/or attending your wedding or event (this is due to the fact that your guests may not understand what we offer and we expect you to explain that to them).

Not only is the clause incredibly stupid and openly antagonistic, but it holds renters responsible for the actions of anyone in their party, including guests whose experience may have been drastically different than the renting party's. It even tells renters to spread the news that no negative reviews should be posted, which should be enough to tell potential customers to rent elsewhere.

Now, the Union Street Guest House has all the negative reviews it will ever need. As soon as this started spreading around the internet, it's Yelp page quickly filled up with negative reviews, forcing the business to offer this "explanation" on its Facebook page.

The policy regarding wedding fines was put on our site as a tongue-in-cheek response to a wedding many years ago. It was meant to be taken down long ago and certainly was never enforced.

Oh. Well, LOL… I guess. I'm not sure the "it was all a joke" defense is going to undo the damage done by its decision to insert this language into its rental terms, no matter what the original impetus. This also doesn't explain why a lousy joke was allowed to be part of the official policies for nearly two years (it appeared sometime between August and October 2012). It's gone now, but there's still an edge to USGH's voice in the amended terms, which indicates the Guest House is in no hurry to hand out refunds, return deposits or deal with chargebacks.

CANCEL AT YOUR OWN RISK, WE DO NOT ACCEPT ALL CANCELLATION REQUESTS...

If you file for a charge-back (request a refund directly from your amex or bank card) or file a complaint to any 3rd party organization during that time you are responsible for any fees associated with it and doing so will only hold up the refund process...

The deposit will not be refunded until we feel that everything is 100% resolved (we reserve the right to refund at any time). If you hold the entire Inn you are responsible for every room. There are no "releasing" rooms prior. If there are any unused rooms you forfeit your entire deposit. All chargebacks and any other fees related to any charges from anyone in your party (that they have not paid) will be deducted from your deposit.

According to Page Six, there's also a bit of an edge to its voice in its handling of earlier negative reviews:

For any bad reviews that do make it online, the innkeepers aggressively post “mean spirited nonsense,” and “she made all of this up.”

In response to a review complaining of rude treatment over a bucket of ice, the proprietors shot back: “I know you guys wanted to hang out and get drunk for 2 days and that is fine. I was really really sorry that you showed up in the summer when it was 105 degrees . . . I was so so so sorry that our ice maker and fridge were not working and not accessible.”

It would seem obvious that there are better places to spend your money, especially since the chance of you receiving your deposit seem incredibly slim. The most objectionable part of the terms has been removed, but only because it went completely public. At no time during the last two years did the Guest House take down this clause, which seems to indicate that it wasn't the inside joke it's now pretending it was.

I don't know why this lesson even needs to be learned at this point. If businesses haven't figured out that attempting to suppress bad reviews almost invariably only results in more bad reviews, this sort of stupidity and inevitable backlash should be viewed as nothing more than culling the herd. If you'd rather try to silence unhappy customers than address the problems in your own business, you deserve to have your reputation torched to the ground. But don't blame the internet. This fire was started by the Union Street Guest House itself.

Filed Under: bad reviews, fines, reputation, reviews, threats
Companies: union street guest house

ISP Sues Former Customer Over Reviews Claiming His Internet Speed Was Less Than A Third Of What Was Advertised

from the 'to-be-sued-in-your-jurisdiction,-press-7' dept

Because this always works out well for the plaintiff, another company is suing another disgruntled customer over his online complaints. Peak Internet, a Colorado ISP, has decided to ensure its former customer receives a broader platform to discuss its alleged connection speed issues. [H/t to Techdirt/Popehat reader Carl O. Graham, who may have shoved this in the wrong inbox…]

Russell Petrick is disabled and spends a lot of time on his computer at home. He signed on with Peak Internet for web access to watch movies and surf the net.

"It was just too terrible to consider keeping," Petrick said when asked about the service.

He said he was paying $50 a month for Internet download speeds of 20 mbps... Petrick claims the speeds were nowhere near that, and averaged 6.5 mbps.

"The fastest speed I got was 13.6 mbps download and 3.1 mbps upload," Petrick said. "I didn't get anywhere near the 20 mbps mark."

Since KOAA's "investigation" doesn't provide much more than "this is a thing that happened" reporting and the judicious deployment of the always-reliable "torn off bits of paper" skeuomorph highlighting words like "defamation" and "Yelp" to indicate a lawsuit is being discussed, I've hunted down some of the offending reviews.

Peak Internet's lawsuit says Petrick's statements are not only defamatory, but defamatory per se -- false statements that are so obviously harmful that the ISP doesn't even need to prove it's been harmed.

Since discontinuing his service, Petrick has made defamatory statements about Peak Internet on the Internet, including, but are not limited to, Yelp, YouTube, Superpages, and Yahoo.

The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.

Here's one of the reviews Peak Internet takes issue with.

★☆☆☆☆ Beware: This company advertises fast internet speeds, but in reality rarely provides those speeds. Like every ISP, the advertised speeds are up to that speed. You shouldn't expect to get the top speed all of the time, but you can expect an average speed about 70% of the advertised speed. That's how a regular ISP works. I am receiving speeds at 50% or lower of the advertised package speed.

Peak has a guaranteed minimum which is nice, but they seem to think the guaranteed minimum is the speed that you should average at. One thing to keep in mind with wireless internet is your speeds may fluctuate due to weather and interference. This is not the issue with the package I ordered, as I explain below.

I order the 20Mbps plan. I ran speed tests and monitored the line for a full week after install, and these were the results:

* Speeds to Peak Internet hosted servers: 90% to 100% of capacity. This is useful in determining that there is not an issue between the transmitter on my house and the tower.
* Speeds to any other speed test server, CDN, website, regular download server: 50% or less of capacity. I tested to multiple types of servers at multiple locations across the USA. My average speed was 7Mbps. My max speed was 12Mbps. I never once went above 12.

When I contacted Peak Internet about this issue and provided them the documentation of the tests I had been running they refused to acknowledge the issue. They said I was getting above their guaranteed minimum (4Mbps) and that I should actually be happy that I was getting 12Mbps. If I wanted that, I would have paid for the 12Mbps plan.

Peak Internet has major issues with peering and their bandwidth providers. When I pay for internet access, that means the whole internet. I'm not paying for fast speed tests to internal servers. They also just don't seem to care. They didn't want to look into the speed issue. They didn't have any desire to provide good service. They just wanted to make their money and not deal with people who call them out on their false advertising.

I feel sorry for somebody less technologically savvy that is paying for their higher packages but getting slow speeds. They don't know that they're paying double or triple than they could be for the exact same speed they are getting now with the same company.

Petrick's other reviews (Yelp, Superpages, BBB, Yahoo!) are all pretty much worded identically and make the same allegations. His complaint with the Better Business Bureau contains a link to his speed tests, which show that over the period of time tested, his connection only cleared 12Mbps once, despite being sold a 20Mbps connection. At times, it even dipped below the "guaranteed minimum" speed of 4Mbps.

Peak Internet says Petrick made "false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues" but Petrick seems to have some data that clearly indicates he never approached the advertised connection speeds during the time period he performed the speed tests.

The second part of that sentence seems to claim that Petrick's lying about Peak Internet's reps telling him that he was receiving over the guaranteed minimum connection speed and should be happy occasionally hitting 12 Mbps, even if Peak's 12/1 package sold for half the price ($25) Petrick was paying.

But Peak Internet's own response to Petrick's BBB complaint says pretty much everything Petrick accused the ISP of in his reviews.

The complainant currently subscribes to our $49.95/mo package for a maximum download speed of 20Mbps, with a guaranteed minimum download of 4Mbps. As the complainant has mentioned numerous times in both his BBB complaint, and his support ticket to us, he is achieving over this guaranteed connection speed. Unfortunately, as with every ISP, we can only guarantee the connection and speed within our own network. Once the traffic leaves our network and enters the public Internet we no longer have control over it, and thus cannot guarantee the connection speeds to any third party speedtest server. We value the complainant's business and would like to apologize that he didn't receive our email reply to his tickets and hope that he understands the clarification of our policy regarding the advertised minimum connection speeds.

ISP to customer: thanks for paying for a 20 Mbps connection speed. Anything above 4 Mbps is bonus speed. Stop complaining.

For the most part, it doesn't look like Peak's lawsuit is going to gain much traction. Almost everything Petrick claims can be backed up, either by speed tests or Peak Internet's own statements. And as Ken White at Popehat points out, Peak's suit doesn't really specify much of anything, other than it would like Russell Petrick to stop complaining:

Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can't tell from the complaint, for instance, whether Peak Internet's argument is "our speeds were never that slow that often, he's lying" (which might be a valid defamation claim) or "his arguments are unfair because these speeds are above the guaranteed minimum speed and we don't promise the top speed all the time" (which would be an invalid attack on a protected opinion).

A customer who can only approach the speeds of a connection priced at half what he's paying obviously isn't going to be happy, but rather than work towards improving connection speeds, the company apparently decided to defer to its fine print. This isn't a great way to provide customer service and suing someone over bad reviews is an even worse decision.

Saying something is defamatory is basically calling that person a liar. Can Peak Internet prove Petrick was willfully lying when he wrote these reviews? Will it deny that it told him he probably would never approach the advertised speeds it offers but apparently can't fulfill? It seems like a long shot. The fact that other customers have left reviews complaining about slow connection speeds indicates Petrick's experience wasn't an isolated instance. This looks more like a terribly misguided attempt to silence a critic with a little intimidation.

If there is any further question about the legitimacy of this lawsuit, Peak Internet's own actions taken in conjunction with the appearance of Ken White's post on the subject show a company hastily mismanaging its reputation. Bad press from an unmerited lawsuit is never a good thing, but Peak is actively making things worse by deleting negative comments from its Facebook page (but at "advertised speeds" as Ken White notes) and apparently posting fake reviews at Yelp (via Adam Steinbaugh.)

Filed Under: colorado, defamation, reviews, russell petrick
Companies: peak internet

Judge's Overly Broad Discovery Order About Online Critics Allows Ubervita To Bully More Authors Of Critical Reviews

from the free-speech-bullies dept

Earlier this month, David Kravets over at Ars Technica, wrote about a questionable order from Judge Marsha Pechman, allowing nutritional supplement firm Ubervita to issue a subpoena to identify a bunch of negative reviewers on Amazon and Craigslist. The order was not only premature, but incredibly broad:

Ubervita may serve subpoenas on Amazon, Inc. (or other appropriate Amazon entity) and Craiglist, Inc. (or other Craigslist entity) intended to learn the John Doe defendants’ identities, including their names, addresses, telephone numbers, e-mail addresses, IP addresses, Web hosts, credit card information, bank account information, and any other identifying information.

Yikes! Paul Levy at Public Citizen took note of this ruling, and contacted Ubervita's lawyer to note his intention to ask Judge Pechman to reconsider the order. As Levy notes, there were a variety of problems with the order:

We were concerned, however, because the early discovery had been authorized even though the motion was exceptionally bareboned, without any showing of legal and evidentiary merit, as required by the Dendrite rule, and because Ubervita’s moving papers, and Judge Pechman’s early discovery order, had been maddeningly unspecific about which critical comments were the subject of Ubervita’s claims of product disparagement and unfair competition. The complaint itself cited a couple of adverse comments but went on to allege that there were many other criticisms, unspecified, whose authors were Doe defendants. This unspecificity violated the prong of the Dendrite test that requires the precise actionable words to be spelled out.

Even more troubling was the fact that Ubervita was using the ruling to intimidate any new negative reviewers, posting comments in response to negative reviews, claiming that the reviews were libelous, that it had already filed a lawsuit about other commenters and that the court had allowed the names to be subpoenaed. One comment notes:

On July 2nd, 2014, we filed suit in Federal Court in Washington State to subpoena various websites for the identities of our attackers. The attacks have gone far beyond these anonymous bad-mouthings and 1-star reviews. While we won't elaborate on that issue here, you can Google it or search the Justia.com legal search engine website to see it. It was just filed today, so it may take a few days to propagate those search engines.

To our attackers: you should probably stop before you get into a lot of legal trouble.

As Levy notes, this use of the broad order to intimidate other commenters is quite problematic:

Even worse, Ubervita had started invoking Judge Pechman’s decision to post responses to critical comments, including comments made AFTER the lawsuit was filed which therefore could not have been alleged in the lawsuit to be false and defamatory, warning that Ubervita was suing its critics and inviting commenters to conduct a Google search to learn about the case – presumably, directing them to the Ars Technica article that warned of the supposed “unmasking” order. (I have linked above to PDF's of the threatening comments, not to the comments on Amazon's site, because Amazon has been removing them).

Once Levy contacted Ubervita's lawyer, Mike Atkins, the company promised to limit the subpoena being sent to Amazon to just trying to target those that the company believes are really from an Ubervita competitor. Still, Levy is reasonably troubled both by the court order and the ability of Ubervita to use such a ruling to stifle critical speech.

I give credit to Atkins for promptly responding to my expression of concern by agreeing to limit his initial discovery efforts directed to Amazon; in my own mind I remain uncertain on whether he deliberately sought an overbroad order. It is apparent from his client's to use the early discovery order to bully its online critics, however, that Ubervita itself has the evil intent of suppressing all criticism.

Not only does it deserve condemnation for this conduct; you also have to wonder how good its products can be if success in the marketplace depends on suppression of criticism.

Filed Under: anonymity, critics, discovery, marsha pechman, reviews, subpoena, supplements
Companies: amazon, craigslist, ubervita

Court Fines French Blogger $3,400 For Her Negative Review Of Local Italian Restaurant, Il Giardino

from the enjoy-your-cash,-idiots...-and-your-demolished-reputation dept

Here's yet another business that, when confronted with a negative review, thought to itself, "Why not deter EVEN MORE potential patrons from ever considering setting foot in our establishment?" There are many ways to react to criticism, and Il Giardino, an Italian restaurant located in France, opted for "catastrophic."

A food blogger in France has been fined 1500 euros ($2,040 USD) for writing a negative review of a restaurant. According to Arret Sur Images (translated), Caroline Doudet wrote an unflattering review of Il Giardino, an Italian restaurant in Cap-Ferret, France in August of 2013 on her blog Les Chroniques Culturelles. She was brought to court six months later by the restaurant.

Doudet's review is actually a blog post, one that would require readers to do a little digging to get past the normal review sites. As far as I can tell from the translation, Doudet portrayed the lousy service she encountered in a far more humorous fashion than most negative reviews, all the while clearly pointing out the deficiencies she encountered.

So, rather than address the issues, or simply disregard the single voice complaining about the three waitpersons apparently needed to acquire a single round of beverages (not to mention quality issues with the food [and service] past that point), Il Giardino decided to make its mégot mal a full-blown legal affair.

It all comes back to European supervillain The Google.

Sud Ouest reports (translated) that the lawyer for the restaurant claims that the post caused "great harm" to his client because when the restaurant was Googled, the negative review was one of the first results.

Ah, yes. SEO uber alles (he said, fearlessly mixing European dialects like a trainspotting linguist). Great harm was apparently suffered and, therefore, the person who received lousy service from the aggrieved entity must pay. The court apparently agreed with this faulty line of logic (possibly due to Google's name being raised [and presumably greeted with involuntary hisses by attending countrymen]) and slapped the blogger with a hefty fine and a request that she "change the title" of the offending post.

Doudet did them all one better. She deleted it. It lives on at the Internet Archive, but won't be troubling search engine results to the extent it once did. Not that it matters. Il Giardino's decision to sue is hurting it far more than Doudet's post did.




Doudet was also charged $1,360 in court costs, bringing her total fines to a positively KlearGearian level of vindictive ridiculousness ($3,400).

There are too many things wrong with this court decision to enumerate, but Doudet's take on the fiasco sums it up beautifully.

"If bloggers do not have the freedom to write negative reviews, positive reviews make no sense either."

If businesses like Il Giardino want to continue living a "hear no evil" existence, that's fine. But no one should believe anything positive posted about the restaurant anywhere -- not if this is how the business reacts when it's criticized. Every so often, something truly defamatory should be addressed in this fashion, but just being criticized shouldn't trigger this sort of reaction. If the restaurant's Google juice is so diluted it can't outweigh a blogger, the problem lies with the restaurant, not the critic. Now that it's punished a critic, its reputation has gone completely south, something that wouldn't have happened if it had just accepted the fact that bad reviews happen and moved on.

Filed Under: blogging, caroline doudet, food blogging, france, free speech, opinion, reviews, search results, seo
Companies: il giardino