After a stay in an Ohio hotel, a disgruntled guest wrote a review on TripAdvisor to complain about the housekeeping. Less than 24 hours later, the critique was taken down by its author — after the hotel said it would sue.
In another instance, a hotel in Quebec sued a traveler who took to the website to complain about an alleged infestation of bedbugs.
Needham-based TripAdvisor says those are examples of a growing threat to free speech online — businesses that intimidate users into removing unfavorable reviews by threatening them with legal action. Such lawsuits — or the prospect of one — resulted in about 2,400 users deleting their reviews from the website over the past year, according to the company. Such a lawsuit is known as a “strategic lawsuit against public participation,” or SLAPP.
There’s an “anti-SLAPP” law on the books in Massachusetts, but it was put in place in the early 1990s, before consumers came to rely on online reviews of everything from dog treats to luxury resorts. Two nearly identical bills filed by state Representative Mark Cusack, a Braintree Democrat, and state Senator Joseph Boncore, a Winthrop Democrat, seek to amend the law, which only covers public speech regarding matters under consideration or review by a government body, such as development projects.
The proposed legislation would extend protections to public speech, including online reviews. It also would allow defendants to collect legal fees if a case against them is dismissed.
Brad Young, assistant general counsel for TripAdvisor LLC, said consumers’ “right to write” needs to be preserved.
Intimidation tactics by some businesses are “meant to destroy speech and transparency,” said Young, who recently testified in favor of updating the law before a legislative committee. “If you’re that reviewer, you have two options: You can self-censor yourself and take the review down and be gagged by this bully, or you can choose to spend ten, twenty, thirty thousand dollars to defend yourself. I don’t have to tell you what happens.”
Cusack said he’s hoping the legislation, which he first proposed three years ago, will finally move forward.
“People would be surprised if they reviewed a product and were hit with a lawsuit,” he said. “This protects free speech; hopefully, we can get it done this session, especially in the climate we’re in now nationally, where people’s free speech is being attacked.”
Amending the law would bring Massachusetts in line with other states where technology companies have a large presence — including California and Washington, said Laurent Crenshaw, Yelp’s director of public policy. Crenshaw also spoke in support of the proposed change at the recent Beacon Hill hearing.
“We’ve been around since 2004, so we’ve seen many instances where business owners have attempted to use SLAPPs against reviewers,” he said. “Thankfully, this is a very small portion of the overall users on our platform, but it is still a problem that can, and should, be fixed.”
A federal law passed last year prohibits businesses from including clauses in contracts that prohibit consumers from writing reviews.
Both TripAdvisor and Yelp offer businesses ways to reply to negative reviews on their sites, to encourage dialogue instead of legal action. And TripAdvisor warns its users about businesses that have threatened or pressured customers into removing negative reviews by placing a prominent alert on the pages of those businesses.
Strengthening the Massachusetts anti-SLAPP law is not meant to deter businesses from suing if a review is defamatory, said Jeff Pyle, a partner at the Boston law firm Prince Lobel, who also testified before legislators. Pyle has represented several clients in SLAPP lawsuits.
“We have one of the weaker laws in the country,” Pyle said, adding that a May ruling by the Massachusetts Supreme Judicial Court didn’t help. The court ruled that a plaintiff can avoid dismissal of a lawsuit under the anti-SLAPP law by showing that the primary motivation for suing was something other than to stifle speech.
“It means there will be more lawsuits targeting individual citizens of modest means, in trying to shut down their activity and their speech,” he said. “These [proposed] laws would help to close these gaps.”