Friday, September 27, 2013

New Goodreads Review Policies - Discussion of the Limits of Free Speech






Hi!  I'm Anna Erishkigal.  By night I scour book discussions threads searching for great books to share with my friends and three 'tweens' so I have something to talk about and not look like a dork.  By day, however, I happen to be a practicing attorney with a sub-practice related to Intellectual Property law.  

Recently Goodreads clarified their Reviews Policy to spell out what authors and readers could and could not do when rating and reviewing books.  They did not do this to be mean or censor your right to talk about books with your friends.  They did this because some people have been breaking the law and, if they don't fix the problem, the government might come in and shut them down.  That would stink, wouldn’t it?  Where would we go to chat about the next great book?

In case you haven't already read them, here are Goodreads updated Review Policies:


A few people are really angry about these changes and have taken to the internet, saying that Goodreads is mean or does not have the right to do so because it violates 'free speech.'   In case you've never read the actual First Amendment, here it is:



There is a common misconception that 'free speech' means the right to say whatever you want.  Legally this is not correct.  Because knowledge is power, I will put on my lawyer hat and attempt to explain Free Speech in layperson language so you understand why they are making these changes and what you can and cannot do.

Supreme Court Caselaw:

Free speech means you have the right to:
·         Not speak (i.e., you have the right to remain silent);
·         To engage in passive protests to protest a war (such as to wear a black armband to school);
·         To use certain offensive words and phrases to convey a political* message;
·         To advertise products (with some restrictions);
·         To engage in some symbolic speech (such as burning a flag during a protest) but not others (such as burning your draft card). 

*Note the word political.  Political means relating to the laws and policies of the government.


Free speech does not include the right to:
·         Incite actions that would harm others.


For more information about Free Speech, why not visit the official US Courts government website at:  http://www.uscourts.gov/educational-resources/get-involved/constitution-activities/first-amendment/free-speech.aspx

 
Free speech rights only attach when it is the government doing the restricting.  They do not extend to private actors such as corporations, businesses, or private individuals.  This is why the local mall can legally escort you off the premises when you show up to protest Abercrombie's publically stating they only want skinny kids shopping at their store (link:  http://www.huffingtonpost.com/news/abercrombie--fitch-controversy ), but your local town hall can only tell you to pipe down so your megaphone at 3:00 a.m. isn't breaking the local noise ordinance.

See what I just did there?  I made a derogatory statement about Abercrombie, but I included a link to a traditional, credible media source that I trust as backup (not a private blog).  Reposting links to something somebody else said does not insulate you from telling the truth.  I also included a link back to the uscourts.gov official website.  Do you know why I did that?  Because my right to free speech does not include the right to say something which is not true, especially when it could cause someone economic harm.  If I make a statement which I cannot later back up, Abercrombie could sue me, and they could sue Goodreads as well if somebody points it out to them and they don't remove the comment.

Now there has been some criticism of Goodreads lately for revising their review policies because some people mistakenly believe Free Speech means they can say whatever they want, but when you publish a statement about any product (even a book), everybody has a legal obligation to make sure what they are saying is the truth.

And that is what Goodreads revised Review Policies are all about.  Goodreads has gotten so popular that many people go there now to help them decide whether or not to buy their next book.  Amazon, Kobo, Sony, GooglePlay, and other booksellers use Goodreads data to decide what books to stock.  People look to us, Goodreads members, to help them make financial decisions about how to spend their money.  Isn't that cool?  You are helping people decide which books become the 'next big thing,' not some big wig advertising agency attached to a big publishing house!  But with that privilege comes a hefty responsibility.  

Once money gets involved, another whole area of law called Consumer Protection law comes into play.  If you write a review which is untruthful, harmful, or malicious, you could get sued.  You could get sued for defamation of character.  You could get sued for harmful interference with business relations.  You could get sued for cyber-bullying.  You could get sued for intentional inflection of emotional distress.  If you do, your screen name will not protect you.  The First Amendment will not protect you!  The courts will order Goodreads to give them your IP address, an IT expert will trace that IP address to wherever you usually log in, an attorney (like me) will serve you with a summons to court via a sheriff showing up at your door, and then you will have to do what I just did above when I made a snarky comment about Abercrombie … prove you are telling the truth.  That would suck?  Wouldn't it?

And here's why Goodreads had to revise their policy ... if they have reason to believe something somebody says is not the truth, or is said maliciously, or bullying, or harmful, they could get sued too.  It's already happened with fake hotel and restaurant reviews on websites such as TripAdvisor and YELP, and now the government is aiming their gunscopes at other websites that make their money publishing customer reviews of products.

http://www.nbcnews.com/business/ny-attorney-general-cracks-down-fake-online-reviews-4B11235875





Under the law, the burden is on them to prove they know you are telling the truth when you leave your review.  Yup ... they have to vouch for you.  If challenged, they have to stand up and say 'I trust this person was telling the truth' (just like when I cited that article from the Huffington Post about the Abercrombie CEO).  The best way to do that is to have a flagging system and clear written policies in place so that Goodreads can swear they looked into it when somebody accused a Goodreads member of leaving a false review and know you are telling the truth.  The new guidelines were written to protect you, the potential reader, from being influenced by sockpuppets, astroturfers, carpetbombers, and trolls.

Here is where you can learn more about consumer protection law.  It's a cool little 4-minute video by the Federal Trade Commission which applies to a lot more stuff than just Goodreads:  http://www.business.ftc.gov/multimedia/videos/ftc-endorsement-guides     


And here are the Federal Trade Commission Guidelines themselves which explain all sorts of things about customer testimonials (reviews), including why Goodreads asks you to say 'the author gave me this book for free in exchange for a fair review' if you do an R2R:  http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf

Now does this mean you can't tell people what you really think about a book?  No.  Of course not!  You are entitled to your opinion and sometimes the truth is, well, that book really does stink!  The truth about a product being sub-standard or not-your-cup-of-tea is every bit as important to a potential reader as a statement saying the product is great.  However, the law requires you to be mindful of the fact that when you publish a review or other comment on a book review website, that the people who read your review assume you understand the law and, therefore, what you say is the truth, the whole truth, and nothing but the truth.

The revised Goodreads Review Guidelines, the limits on Free Speech, and Consumer Protection Law all boil down to the Will Wheaton Rule:


Don't be an @$$....

I hope this long, boring legal explanation is helpful to people and will help you understand Goodreads recent review policy changes.  It's not about you.  It's about compliance with federal law.  Thanks for participating in this community!  And please, don't come to me for legal advice or start a flame war on this blog.  If you don't like the law, write your Congressman, not me.  I joined Goodreads to get away from my day job!!!

Be epic!
Anna Erishkigal

[*Boring mandatory legal disclaimers:  The above statements are my own personal opinions and does not constitute the official policy of Goodreads.  The above does not constitute legal advice.*]




2 comments:

  1. Replies
    1. Did I speak in English well enough? It's pretty arcane law ... got to wrack the brain to translate it into some ... human ... language :-)

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