St. Paul, Problems of Being Human
and
Small Businesses Dealing with AngiesList.com
by Donald W. Hudspeth
Like many people with a standard Midwest religious
upbringing I struggle to do the right thing and, sometimes, to know just what
that is under the circumstances. But, as
St. Paul discussed in Romans 7 [1]
“being good is not that easy, even when we are so inclined” (and he was a Saint.)
Hardly a week goes by I do not regret some act or omission – usually one made
in passing while I was working on something else. I understand the likelihood
of such mistakes and work to understand and accept such human failings in
others.
This leads me to the problems that I see my business
owner clients having with public review sites like AngiesList.com. The Terms of Use for AngiesList state in Article 14
that the customer is not to post unfair or unreasonable reviews. In particular
Article 14(c) states that the customer:
Will not submit any reviews that may be considered by AngiesList to be
unlawful, harassing, libelous, abusive, threatening, obscene, profane hateful,
offensive, harmful, vulgar, distasteful, invasive of another person’s privacy
or proprietary rights or racially, ethnically or otherwise objectionable.[2]
But, contrary to these rules of posting, my small
business clients have been severely hurt by AngiesList subscribers who “game
the system.” For example, one of my firm’s business owners had a negative
review posted by where his customer who (accidentally or on purpose) listed the
wrong number for the business. Because of the wrong phone number, AngiesList
could not notify the business of the negative review – nor did it try by Googling my client to obtain a correct phone number
or email address. (It would seem with such great power would come great
responsibility.)
By the time my client learned of the
negative post the response time had passed. In addition to having a wrong phone
number, the posting was factually inaccurate and encouraged other prospective customers
not to do business with them. The “don’t ever do business with this so and so”
kind of post.
Under city, state, county and federal law,
my business client would be served with notice of the complaint, and would be
given the opportunity to defend itself before an impartial judge or jury. It
could perhaps even countersue for breach of contract and/or trade disparagement.
What my business owner client really wanted was “due process,” which the law
affords and AngiesList does not. When my
client later learned of the complaint and contacted AngiesList about the false,
and hereto unknown, post, the local AngiesList representative declined to
remove the negative post or allow my business client the opportunity to
respond. This one post essentially destroyed my client’s business because
locally, virtually everyone checks AngiesList before hiring a business in the
construction trade.
In another case one of my business
client’s customers unilaterally breached signed a enforceable contract (after
the customer had signed, storm chasers
knocked on the customer’s door and offered to do the work for half price), then
the customer used an extremely negative post with the Better Business Bureau (about
the alleged extreme unfairness of the business seeking to enforce the written contract
on which it had already partially performed) to force the business to accept
the breach.
Again, the review was one-sided and
encouraged others not to do business with them. The customer basically stated to
the business: “Refund my $1000 deposit or this post will go live in one week
and destroy your business.” The negative and abusive post was particularly
harmful in this case because it would go live right before a huge trade show in
a local arena – at which and from which the business would hope to derive its
next six months of business. So, again the business acceded.
Even worse are the malicious postings to
so-called “fraud report” sites (ripoffreport.com is an example) which posts are often nothing more than venting by persons
with an axe to grind. We may understand the right and need to vent – but how,
where and at what personal cost to the business owner) and social cost in the
loss of a good business? And, where is the justice and due process in all of
this? Google theoretically (and
actually) can monetize ripoffreport.com entries which match search terms, and
so will elevate them to the front page because the search term results also contain negative
words in association with the search term.
To aggravate matters, ripoffreport.com has a strict “Non-removal policy“. Even if the review is unfair or inaccurate,
even if the aggrieved party obtains an injunction through a court ordering it
be removed, even if the original author wants to remove the post, it stays.
In the above cases the business owners could
have likely prevailed – at least in part - at law on the customer’s over-stated
facts and assertions. And, the businesses could have perhaps prevailed on their
counterclaims for breach of contract and trade disparagement. But the business
owners could not afford the negative review, which of course “thousands upon
thousands” of potential customers could see on the internet.
As a matter of public policy of course
we all want to be able to make informed decisions about providers of goods and
services, and we want justice for consumers in their dealings with small
businesses. But now, due to the power of the Internet, and the apparent acquiescence
of third party review sites – which are ostensibly neutral in policy but which
in practice allow, if not encourage, unfair and unreasonable results – businesses
lack the means to have a fair determination of business disputes. Now it is
just a power game of the consumer and the internet against the small business. Justice
is not served where the business must risk its very existence to contest a
single claim and sometimes is denied the right to do even that.
It comes back to St. Paul. Each of us
has done wrong; each of us has a bad day at work and has caused a client
inconvenience or harm. Most of us, like St. Paul, seriously hate that. But, we
do not expect or deserve to have our lives ruined by those who would take
advantage of the situation. Third party review sites need to be regulated – or
to self regulate – to afford due process. Otherwise, they will increasingly
become a tool of extortion by an unreasonable, and often lawfully incorrect,
consumer.[3]
The Law Offices of Donald W. Hudspeth, P.C.
Business Law, Commercial Litigation & International Business Law
www.AZBUSLAW.com - 866-696-2033 - TheFirm@azbuslaw.com
“The Business of Our Firm is Business”
[1] Romans 7:15 I do not
understand what I do. For what I want to do I do not do, but what I hate to do.
New International bible (© 1984)
[2] AngiesList.com
Terms of use Web. July 22, 2012. Note:
Terms of Use subject to change without notice.
[3] In
the vast majority of my business to business cases the party “acting out” is
not doing so from “evil,” but because it does not know what the law is. I
submit much the same thing is occurring
with consumers who assume they are right, but may not prove to be so in
fair adjudication of the matter.
