If he reveals the details of his awful vacation-rental experience, Terry Fedigan is afraid of what might happen. The rental property’s owner could sue — and win.
Last summer, he rented a home in New York’s Catskill Mountains with his brother. “We were not satisfied, and I wrote a negative, but factual, review on TripAdvisor,” he says.
But after the post went live, the owner called Fedigan’s brother, who had signed the contract, and demanded that he delete the review immediately.
“Initially, I dismissed it as absurd,” says Fedigan, a legal consultant who lives in London. But then he checked the contract. Sure enough, his brother had agreed that he and his guests would refrain from publishing “any disapproval of the property, disparagement, defamation, libel and/or slander of [property and owner], as well as the property including but not limited to its affiliates and its employees.”
Fedigan’s brother signed away his right to free speech, which appears to be an increasingly common occurrence in the travel industry. Non-disparagement clauses in contracts are multiplying, according to Whitney Gibson, a partner at the Washington law firm Vorys, which specializes in Internet brand and reputation issues. “There have certainly been an increasing number of these clauses in the last couple years, as businesses have grown concerned about their online reviews,” he says.
But a proposed law would tip the scales in the consumer’s favor. The Consumer Review Freedom Act, being considered by Congress, would void any contract that prohibits, restricts or imposes a penalty on customers who write a review. The law has many supporters and a few detractors, but if you’re planning a trip, you can take a few steps to avoid a gag clause, which is most common in vacation-rental contracts.
It’s too late for the Fedigans and many others like them. They reluctantly deleted the review of the substandard vacation rental, which is normally the outcome.
“I consider this an egregious example of free-speech stifling as well as old-school bullying,” Fedigan says. “If you look at public reviews on his property, they are all positive. Clearly, his bullying tactics are effective at dissuading the publishing of negative reviews.”
But companies such as TripAdvisor, which hosted the now-deleted review, are fighting for people like Fedigan.
“We do not believe that unscrupulous business owners seeking to eliminate transparency in the marketplace should be able to muzzle dissatisfied consumers’ opinions and reviews,” Adam Medros, TripAdvisor’s head of global product, said at a congressional hearing last month. “It is completely against the spirit of our site for any business owner to attempt to bully or intimidate reviewers who have had a negative experience.”
There’s another side to this issue, and it also makes a compelling case. “This debate has been cast as being about the freedom of speech,” says James Goodnow, a lawyer with an expertise in technology cases. “It is not — at least not in the constitutional sense. The First Amendment freedom of speech protections only apply to government limitations on speech.”