“I Told the Waiter There Was a Fly in My Soup!” – A Little More Freedom for User Outrage on Yelp and other Social Media Sites

“The worst meal I ever had. And the service sucked, too.” Can you legally say that kind of thing about a restaurant on social media sites like Yelp? Those long, eye-glazing terms of service (sometimes called “terms of use,” “end-user terms of service,” etc.) in websites that express your rules of behavior sometimes state that you can’t say derogatory things about a business without violating those user terms. The text of such user terms can ramble on forever and obviously go unread by most customers. When is the last time you thoroughly read the Apple iTunes user agreement?

It’s important to note that U.S. courts typically do uphold website user terms when they are challenged. For example, an Arizona federal district court stated in a 2009 case referring to a non-disparagement clause, that “[u]nder Arizona law, courts generally enforce boilerplate language or clauses in non-negotiated, standardized contracts.” Serious stuff.

California, the home state of Yelp, recently made it a little easier to feel safe when using social media to criticize businesses for what the consumers believe to be subpar performance. California Civil Code § 1670.8, formerly called the “Yelp Bill” before it was passed, bars businesses from including those non-disparagement clauses in their consumer contracts. The law will take effect January 1st, 2015, and with it comes a host of civil penalties for violations: a $2,500 fine for a first violation, $5,000 for each one thereafter, and possibly $10,000 for a willful, intentional, or reckless violation. (There is a complicated body of law on how individual state laws are applied in the context of the worldwide Internet that goes beyond the discussion in this posting about this new state law.)

What are the implications of this new law? Many of us wouldn’t think of stepping foot in a store or restaurant without seeing what others have to say about the place even though many reviewers are unreliable, even seemingly crazy. Yelp and the like have become sources for the public to instantly obtain and share opinions about businesses in any corner of the world. A two-star average from 72 reviews? No, thank you. Lousy service? I’ll keep scrolling down the search list on my app. Admittedly, we all believe that haters are more likely to express opinions than the positive thinkers. Outrage has its power.

There’s a real issue here: freedom of expression in social media. In other words, to what extent will big social media companies govern consumer speech? For example, press reports say that a couple in the United Kingdom was recently fined £100 by a hotel per its policy, for posting a negative review on TripAdvisor that described the hotel as a “rotten stinking hovel.” After being put on alert that such a policy might not comply with trading practice standards, the hotel ended its policy and refunded the fine. (The story can be found here: http://www.bbc.com/news/uk-england-30111525.)

And reportedly, in Kansas City, a mother who gave an orthodontist a 3-star Yelp review initially received gratitude for the review by the orthodontist himself, only to later be approached by the orthodontist’s office manager, an attorney, and even his patients, to take down the review. (More details can be found at: http://www.kshb.com/news/science-tech/kansas-city-woman-receives-legal-threat-for-3-star-yelp-review-of-orthodontist.)

The passage of the California law won’t foreclose all legal recourse for those that receive less-than-desired consumer reviews. The law of defamation still remains in full force and effect, and is a viable option for businesses plagued by unfair reviews that express harmful false statements. For instance, saying, “my friend was poisoned by the pumpkin pie and had to be hospitalized” might well be defamatory if untrue, while saying, “I just felt uncomfortable in this creepy restaurant” isn’t likely defamatory, but rather a statement of opinion protected by the First Amendment. Yelpers enjoy the protection of the First Amendment, just like newspapers and TV networks. Any reviewer found to have posted false statement of fact on one of these social media sites may face liability in court. In other words, the new law hasn’t created an open season for defamation. Further, social media sites still retain the power to terminate user accounts, something that virtually all user terms include. Yelp, for example, states in its terms of service that it “may close your account, suspend your ability to use certain portions of the Site, and/or ban you altogether from the Site for any or no reason, and without notice or liability of any kind.”

So, before you post a scathing review about a recent experience, just remember – in California, you have a little more freedom to scream and shout. That freedom is not without its limits. For some reason, there is no push to restrict effusive praise. Compliments are always encouraged. If you have something nice to say, say it. But, if you have something mean to say, and you didn’t order that fly in your soup, you might feel just a bit safer about saying it in California.


Mark A. Fischer is a partner at Duane Morris LLP. His law practice is focused on solving problems and making deals for innovative companies, institutions and individuals. Mr. Fischer’s clients are typically in the creative industries such as new media, social networking, music, motion pictures, interactive entertainment, information technology, software, television, publishing, fashion, industrial design, and toys. He has particular experience in U.S. and international copyright, entertainment, licensing, celebrity representation, copyright litigation, arbitration, open source, privacy and trademarks. You can read his professional biography here: http://www.duanemorris.com/attorneys/markafischer.html.



Are Copyrighted Works Only by and for Humans? The Copyright Planet of the Apes and Robots

Why should humans own all the world’s copyrights? The question is prompted by a photograph that’s made worldwide news. In Indonesia, a female crested black macaque monkey picked up a camera owned by photographer David Slater. I won’t focus much on the story of the monkey and her selfie because that topic has already been well-discussed in the media. Yet the story sets the table for more intriguing and ultimately more important issues.

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Blockbusters, Behemoths, and In-Betweeners – The Changing Entertainment Business

What are the most notable recent changes and trends in the entertainment business? Not all of the changes are due to our friend the Internet, although that is obviously playing a very big part. Many motion picture industry figures have commented that we are headed to a future of still more big budget movies dominating the marketplace at very high movie ticket prices. Are the big boys and girls of show business going to win the lion’s share of revenue in the future?

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The Six Million Dollar Tweet

tweet is limited to 140 characters, but a picture might be worth six million dollars. Actress Katherine Heigl, who rose to Hollywood stardom on the medical drama television series Grey’s Anatomy, is suing the Duane Reade pharmacy chain for tweeting her image.

At some point a paparazzo took a picture of Heigl carrying Duane Reade shopping bags on her way out of the pharmacy. Duane Reade found it on a celebrity gossip website. On March 18, 2014, Duane Reade included the image in a tweet that read, “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.

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You Are Too Beautiful – Photoshop and Advertising

An article in Fashionista this week raises a provocative issue. Is it false advertising to use digital imaging software, such as Adobe’s Photoshop, to enhance photographs of people modeling cosmetic products and services, making the models look even more beautiful than they do in real life in order to sell these products and services?

According to the Fashionista article, Seth Maitlins, a citizen advocate and former marketing executive from Los Angeles, with the help of the Eating Disorders Coalition, has spearheaded the introduction of a bill in Congress called the “Truth In Advertising Act of 2014,” H.R 4341.

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The Little Antenna That Could? Aereo in the Supreme Court

The Little Antenna That Went to the Supreme Court

Call it “the little antenna that could.” Remember the classic rabbit ears that topped television sets? Now there is a miniature version that doesn’t look like a rabbit but moves very fast. A new device developed by Aereo, Inc. provides access to live TV online for local channels within a given coverage area. Using an array of tiny dime-sized antennas, the system makes it possible to watch television without a television set. For a rate currently around $8-12 per month, subscribers can view and record live television broadcasts over the Internet through mobile electronic devices. Since its inception in 2010, Aereo’s online television playback system has expanded into 11 major U.S. media markets and garnered the company nearly one hundred million dollars ($100,000,000) in funding. This expansion has also earned the small startup company the enmity of major broadcasters and a date in the U.S. Supreme Court.

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Whose Motion Picture Is It Anyway — Does the Actress Own the Motion Picture?

It was the casting call that would make her name known, but it didn’t bring the kind of fame for which she was hoping. In July 2011, Cindy Lee Garcia landed a minor role in a motion picture that was to be called “Desert Warrior.” She received four pages of the script, performed her role, and was paid $500 for three days of acting. Little did she know, this brief performance would make her the center of an uproar in the Islamic world.

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Do You Own Your Music Playlist?

Is a playlist as protectable and as valuable as a song? When I was on a panel at Harvard Law School a decade ago and first heard the notion that a DJ’s playlist was just as valuable as a song, I couldn’t believe it. I recognized the value in a playlist but still felt that there was something especially creative and valuable in a song in contrast to the act of curating songs of others. Today the DJ electronic dance music culture is strong and growing stronger, making the question of playlist ownership even more relevant. Playlists are valuable but are they protectable under copyright law?

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How Long Should You Wait to Sue for Copyright Infringement?

Suppose that you’ve created something copyrightable. You’ve gone through the process of registration with the Copyright Office and followed the renewal procedures (if they were necessary). You learn that someone is infringing your copyright. You seek the advice of your lawyer, who sends a cease and desist letter to the infringer. How long can you wait before you have to sue? The answer, it turns out, is a complicated one.

The issue is currently under consideration by the Supreme Court. In January, the Court heard oral arguments from parties in the case of Petrella v. Metro-Goldwyn-Mayer, Inc. A decision is expected by June 2014. Ms. Paula Petrella is the owner of the copyright of a screenplay that served as a basis for the classic Martin Scorsese 1980 film Raging Bull. Ms. Petrella’s father, Frank Petrella, had written the screenplay with his friend, boxer Jake LaMotta (the eponymous Bull). Raging Bull is widely considered one of the greatest films of all time, and resulted in an Academy Award for Robert DeNiro for Best Actor.

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All’s Fair in Copying the World’s Books

Wouldn’t it be fantastic to have all the world’s literature scanned and available for search in text online? Well, something along those lines is already here.

Google’s Book Project (or “Google Books”, as it has come to be called) is one of the enterprising tech giant’s ambitious ventures. Google Books itself consists of two smaller components. First, the Partner Program, in which Google hosts books on its website licensed from publishers with whom it has entered into agreements. Second, the Library Project, via which Google hosts scanned books from various libraries and collections without obtaining permission of the respective authors or publishers. Since beginning in 2004, Google has scanned over twenty million books as part of the Library Project. The goal is to make the text fully searchable through Google’s search engine.

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