Reviews on the internet are one of the best features offered, providing insight into everything from a restaurant to a lawyer before spending hard-earned money. So within minutes of people realizing their value, businesses realized the value of their manipulation.
There are fake positive reviews, where the businesses say good things about themselves. Phony bad reviews, where competing businesses or adversaries say bad things about their competitors. Astroturfing and extortion to clear up the lies for a price. A cottage industry in reputation management was born to do the dirty work for you.
Yelp was created as a major player in local markets, where the model was to sell advertising to be seen by the huge number of people who would come to see legitimate reviews posted about a business. As long as people are looking at the reviews for a lawyer, for example, they might as well see an advertisement for a lawyer. It’s a volume play, but the volume depends upon the credibility of the website for legitimate review. If it gets a reputation for having bogus reviews, then no one will go there and its value as an advertising venue is diminished.
In an effort to clean up its mess, or punish a law firm for some really crappy “self-help,” Yelp has sued the McMillan Law Group in California for posting positive reviews about itself. Via Mike Masnick at Techdirt:
Yelp has taken that to a new level, deciding to sue a law firm for posting fake reviews. It should be noted that this same law firm, McMillan Group, previously had sued Yelp, claiming that it had been “coerced” into buying ads to get favorable reviews, so you could argue that there’s a reason this particular firm was targeted. But, either way, it raises some fairly interesting legal questions.
Specifically, Yelp is arguing that when McMillan employees created fake accounts in order to post bogus positive reviews for their own firm, they violated the terms of service of the site. Thankfully, (unlike Craigslist), Yelp doesn’t try to argue that violating the TOS is a CFAA violation. Instead, the lawsuit focuses on some specific charges including breach of contract, intentional interference with contractual relations, unfair competition and false advertising.
Mike raised the interesting question of whether a website’s terms of service constitute a sufficient contract upon which to sue.
While it does seem pretty clear that Yelp has caught this firm red-handed writing fake reviews, there are some pretty big questions as to whether or not that’s actually a legal offense for the courts to sort out. There’s a part of me that thinks that Yelp has every right to take action on its own site against those reviews and reviewers — such as deleting the reviews and banning the reviewers — but making the legal claims stick feels like a pretty big stretch.
As the defendants are lawyers, the implications go beyond mere scam advertising. If the firm engaged in deception, there are disciplinary rules at stake as well. Of course, the internet has long been considered by many to be an ethics free zone, where the lawyers abandon all shame in the hope of making a buck. Often, less than a buck. Times are tough out there, you know, and lawyers have a finely honed rationalization bone in their head which allows them to manufacture a litany of excuses to avoid their ethical obligations.
But Mike’s question, is violation of TOS actionable, raises a very interesting point. It’s one thing for the website owner to rely on the TOS as the basis for its own action, say the deletion of content it deems false or inappropriate. I do that here daily, and you should see some of the bizarrely worthless, utterly ignorant, often hateful, crap that gets tossed.
But I would never think to sue someone for attempting to post an awful comment. Nor would I think to sue someone for trying to post a spam comment, even though they do so ten thousand times a day. These are just the annoying attributes of life online, but my passive aggressive tolerance has no bearing on whether a website’s TOS constitutes an actionable contract.
As Mike notes, nobody reads the terms of service, and for most websites, there isn’t even a click-through required, and certainly no signature attesting (falsely) that the terms are accepted. The website owner can mandate that all users wear blue turtlenecks or suffer the consequences, and nobody would ever know or care. While the government tried to use TOS as a foundation for a criminal prosecution under the Computer Fraud and Abuse Act, that fortunately hasn’t flown.
But even assuming that a user of a website must click an “I agree” to the terms of service, does that suffice to create liability for breach of contract? Mike suspects not. But then, can there be no contract created on the internet? Let’s assume that a contract is created for the sale of goods by offer and acceptance as manifested by a “buy it now” button and PayPal payment. Certainly, this has to be a contract, and indeed, it is. But what about all the small print terms and conditions added in at the bottom of an eBay page? What if payment is made with contrary terms and conditions?
If the TOS doesn’t constitute an enforceable contract, then what of the website owner’s right to control/limit the use of its website? The owner pays the freight, but would it not be divested of control without the means to enforce its rules? Is it sufficient to enable an owner to unilaterally dump violators without being able to obtain injunctive relief or damages? And what of the user’s suit to prevent the website owner from dumping him? You know that will come eventually, right?
These are some very hard questions. The worst part of this suit is that it involves a law firm, rather than a dry cleaner. Regardless of the TOS, disciplinary rules should have precluded the firm from engaging in phony self-reviews in the first place. But the marketplace is far more powerful an influence, and the likelihood of being nabbed for deception on the internet is nearly nonexistent.
So this is what the New Normal of Reinvent the Future of Law promoters had in mind?
* By reading this post, you agree to post a comment on Philly Law Blog about how the Eagles suck or you will liable for liquidated damages in the amount of $1.79, payable immediately. Remember, I know who you are.
H/T Steve Magas and Jordan Rushie