Post a Review, Get Arrested For Trespassing?

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It has become commonplace in recent years for travelers and patrons to post reviews about merchants on the internet exercising what they believe are constitutionally protected "free speech rights" that entitle them to post whatever content they want whenever they want, to millions of people. Prior to the existence of the internet, speaking to millions of people was not possible without having millions of dollars to buy time on broadcast outlets. At that time, broadcast outlets "filtered" the content to ensure it, and how it was obtained, complied with applicable law. Now, this "filtering" has become the responsibility of individual citizens, and individual citizens and merchants must realize their rights, and obligations, under applicable law. This is an instant replay of what happened a decade ago, when college students began to "share" (that is, steal) copyrighted music on the internet. Applications are created very rapidly, and as has happened repeatedly since the start of the computer age, new computer applications such as TripAdvisor and Facebook are created, and the law takes some years to catch up. Now the law is catching up to the new opinion and social networking sites. You have been warned!
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I love quirkey little places with smoky pot stoves where you have to walk through mud to get the firewood. Life is an adventure! The immediate effect of a site like TripAdvisor is to destroy "Route 66"-style destinations by cutting off their income so they cannot afford upkeep, thus favoring large corporate destinations. This is because a few ignorant people put up a review that say "This old place is a dump - it should be torn down" - then the place can't stay in business when actually many people like that kind of place. Do we really want a world that is all Wal Marts because of these hostile posts? Even Oprah Winfrey got in on the act a few years back on a program where she traveled with Gail and stayed at the Route 66 Wigwam Village Motel where the rooms are indian teepees. How novel! But now the poor little rich girl so sadly abused as a child now can make comments to the effect that the heating system in the teepee being a piece of junk. Get a life Oprah. The people who run and stay at these places don't wear solid gold shoes like you do. And the kids in those families go nuts at that place. They don't evaluate the knob on the heater and take a million+ impression sucker punch at the owner. Of course, you would rather the kids to be in some stuffy 5-star hotel, right?
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"Sucker punch?" That's what it really is. These bad reviews are analogous to the class bully walking out into the schoolyard and giving a sucker punch to a kid he passes. He picks someone who is unaware of the impending attack, can't mount a defense quickly enough and probably won't mount one anyway (a "cissy"). If the bully had to be accountable for his action (e.g. take a punch back in the mouth) he wouldn't do it. He is not interested in being fair. He is interested in getting a good punch in. This describes the personality of many so-called "reviewers" on opinion and social networking sites.
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There are a lot of merchants perfecting ways to remove or delete bad or unfavorable ratings, reviews, and listings from travel sites like TripAdvisor and Expedia, from social networking sites such as Yelp, MySpace, LinkedIn, and Facebook, and from opinion sites like eopinion.com and insiderpages.com, to save their establishments from these self-annointed "experts" who can't seem to get it that cookie-cutter concrete Wal Mart accommodations are not what everybody wants or what life is all about. The traveler should keep abreast of what merchants are doing to protect themselves so as not to get snagged by a nasty criminal or civil charge. And merchants should keep abreast of what they can do to protect themselves from sucker punches. Don't do what Ocean Avenue Books owner did to a Yelp reviewer in San Francisco and try to throw a punch! First, some basic intellectual property law, also of interest to your lawyer, your county prosecutor, and your Attorneys General.
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When a customer shops at a merchant or stays at a hotel, complex nuances of law are at work quietly behind the scenes. Acting as a customer in order to gain access to the merchant's private place of business in order to glean confidential information about the merchant and to deliberately disclose it publicly is a crime. Many merchants rated as "dumps" are packed with happy customers. This writer worked at one such place while attending college near Kenmore Square, complete with occasional rodents scurrying over from the Green Line T-stop for a "snack." The place is still in business today and its owners are wealthy. It is a fact that the methods and facilities a merchant uses can be considered trade secrets, and customers using these premises have to comply with a sort of de-facto non-disclosure agreement regarding the merchant's private successful business methods and facilities which include, evidently, that the place is a "dump" because it has been successful 35 years later. The fact that private business facilities are "open to the public" does not render the merchant unable to assert privacy rights if the customer chooses to publish a "review" including confidential information to a mass market.
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It is established common law that the details of a merchant's business, including the condition and appearance of its real estate, constitute confidential, proprietary information, except that which can be gleaned with a drive-by appraisal from property the appraiser can legally occupy. For example, a building inspector cannot lawfully gain access to an office building claiming to be a customer, and then write up infractions he observes as a building inspector. He would be trespassing because he gained access to private property through misrepresentation. Without court order or action of law, the building inspector has to make an appointment for an inspection because it is private property. (Note: if the merchant's or landlord's building is "open to the public" the inspector can walk in at will and inspect. A sign must be conspicuously posted such as "Access for non-patrons by permission only." The non-patron without permission is then trespassing.)
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Similarly, any presence on the merchant's property for purposes outside of "patron license"- such as, for example, a review - could be categorized as trespassing. A patron is granted rights to use facilities, not rights to make a review of facilities. It can be argued that if a patron is intending to do a review on TripAdvisor au gratis and without stating so to the merchant, the patron has gained access to private property through misrepresentation, has violated his/her patron license, and is therefore trespassing. A criminal trespass complaint could be filed against the patron. For a retail establishment, a sign placed conspicuously at the entrance stating "This is Private Property. Patrons Only. Persons intending to carry out activities other than being a patron must first obtain permission from management to be on this property." (This could replace the "No Loitering" sign) Then, if the patron posts a review, the merchant could charge the patron with trespassing because they conducted non-patron activity while on the merchant's property (e.g. collecting information about the merchant's establishment to file a review). If the patron removes the review, the merchant could drop the charge.
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Travel-review sites like TripAdvisor and Yelp, for example, subsequently could be found to be profiting off of the crime of trespassing. It could be argued that these travel-review sites practice a form unjust enrichment, through the crime of trespass, through their surrogates (reviewers) acting outside of patron license; In other words, unjustly profiting from the selling of advertisement space presented alongside confidential information obtained via trespassing. If a merchant is being visited for review, the visitor is required to state such and be granted license, or to be refused, just like merchants can do with state inspectors acting without authorization from a court or law. And, sites like TripAdvisor and Yelp don't have a court or law authorizing them to review a merchant, of course.
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Attorneys General, being concerned about how Mom and Pop merchants in their jurisdiction are unable to afford capital improvements in a down economy, note how these merchants are being unjustly bankrupted by bad "reviews" regarding cracked and peeling paint photographed on TripAdvisor or Yelp-type sites which in turn directs web site users towards it's big-dollar advertisers in the same markets. But, imagine if the first Wal Mart was rated a "dump" on Yelp, and was forced out of business. Sears might have liked that at the time. BUT IS THAT GOOD PUBLIC POLICY - FOR WALL STREET TO HAVE DESTROYED ITS NEXT CASH COWS? How much more can Wal Mart grow? Wall Street: don't cut off your nose despite your face.
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Adjudication could determine these so-called "reviews" to constitute "unauthorized inspections" obtained via trespassing because the merchant was not notified that the inspection was being done, and Attorneys General could file for preliminary injunction blocking travel-review sites display of said "reviews" in their state pending a judicial inquiry, thereby protecting the small business merchants in the state. Poor TripAdvisor, Flipkey, hotelguides.com, hotels.com, priceline.com, eopinions.com, insiderpages.com, and the like may become review-starved (Are you listening Barry Diller and Captain Kirk?) In the meantime, travelers would have to find out some other way to evaluate their accommodations- such as by calling the Chamber of Commerce or BBB, or by looking at fuzzy Google Earth pictures.
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Mom and Pop merchants have other angles to protect themselves from travel-review sites. Last time I checked, extortion and blackmail are crimes. TripAdvisor, Yelp, and the like, enable utilization of such crimes by giving citizen-criminals a platform to make good on threats to post "bad" reviews unless the merchant accepts their demand to be offered a lower price, free service, cancellation with full refund, etc. This may become of interest to state Attorney's General and Prosecutors under the concept of "Contributory Liability"-- travel-review sites may be found to be materially enabling and profiting from hosting content gained from what are in fact criminal acts - blackmail and extortion - carried out by third parties. This is going on whether you live in California, Illinois, New York, Jersey, Texas, Pennsylvania or Florida. Incidentally, this sounds like a business the Mob might be in - local hotels must pay for "protection" or find bad reviews posted daily on TripAdvisor.
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Mom and Pop lodging facilities are using another way to stop travel-review sites from ruining their businesses: the "Terms and Conditions" patrons sign at check in. In the old days, these "Terms and Conditions" were very simple, such as: "No Smoking. No Alcohol Consumption. Lock your Keys in the Safe" etc. Today, they are being upgraded to include:
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"Non-Disclosure Agreement: You agree not to upload to the internet, publish, broadcast, or perform, or cause others to do the same, without our express written consent, any information gained as a result of your stay with us. Said information includes, but not limited to, descriptions, methods, opinions, reviews, facts, pictures, video and audio recordings, and the like. You agree to pay us $200 each time said information is accessed by the public.You acknowledge that utilizing a false identity to upload said information may additionally result in your being charged with a crime.You agree to reimburse us for expense we incur in determining your identity to enforce our rights. If you cannot agree with these Terms and Conditions, you agree not to stay with us."
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Or, something more simple like:
"For your payment we grant you limited permission ("Patron License") to use our facilities for the fee you pay. Your Patron License does not permit you to gather information about our facilities, or to publish or post on the internet information you learn about our facilities. Presence in our facilities for a purpose not part of the Patron License is considered trespassing."
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Or,
"You agree not to publish or post reviews about us on the internet without our permission."
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In a retail store, restaurant, etc. you have to do this by posting conspicuously a sign as well as a statement on the receipt: "This is Private Property. Patrons agree not to publish or post reviews about us on the internet without our permission."
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Then, if a patron posts on TripAdvisor, Yelp, or some such site, the merchant would act fast to get the posting removed. THE FOLLOWING IS NOT LEGAL ADVICE, just suggestions for the merchant to provide to their lawyer: The merchant could have a lawyer letter FedEx'd to the travel-review site charging them with "Contributory Liability" in violation of a contract term, with a copy of the patron card or sign. (If the merchant can't afford what the lawyer charges, they must find a Law School or the State Bar in their state and ask them for help to find affordable services) The merchant could file a small claims court action against the travel-review site for the maximum jurisdictional amount as "damages" each week they do not respond as they, with the merchant's patron card or sign in hand, will no doubt settle rather than go to court. On a secondary front, the merchant's lawyer could send a lawyer letter to the patron. If the patron does not respond, the merchant could go the police and sign a trespassing complaint against the patron (if that was in the Terms and Conditions) which can dropped later when the patron removes the posting. The patron's local police usually will "serve" the patron with the criminal complaint. That gets their attention. If the patron looks like a tough guy, the merchant should find a lawyer with a Choicepoint account and run a background check to make sure they are not dealing with a criminal. If so, the merchant should skip the trespassing complaint and patron letter, and have their lawyer do a lawyer letter FedEx to the travel-review site charging them with "Contributory Liability" in violation of a contract term, with a copy of the patron card signed. (Don't contact a patron with a criminal history. They might want to "even the score" and you don't need that kind trouble. Big corporations hopefully will act more civil.)
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With a patron sales contract, TripAdvisor, Yelp and the like will have to answer to subpoenas regarding the identity of posters and the access records of reviews or may be subject to obstruction of justice charges regarding the merchant's attempts to enforce their contract, regardless of what their "on-line check box" terms say.
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What about Free Speech? Boy, is that a crock argument. Attention NewBies: Private Information is not Public Information. Private parties contract away their free speech rights all the time. Every read a sales contract "boilerplate?" It often says something like "Buyer acknowledges that Seller's tools, methods and procedures are proprietary information of the Seller, and Buyer agrees not to disclose said tools, methods and procedures to third parties." Voilà! No free speech! Your transaction with a merchant is a sales contract governed by a "super contract" called the UCC (Uniform Commercial Code) and this law allows the merchant to establish "reasonable terms of sale" that can include, by the way, that "what the patron sees and hears on the merchant's private property is private, confidential, proprietary information." The merchant can file a lawsuit to have the patron remove travel-review site postings because the contract- as stated on the reservation card, signage, or bill of sale- establishes that information gleaned on the merchant's private property is confidential. Alternatively, Under the concept of "Contributory Liability" the merchant can also file suit against the travel-review site to remove postings. All that is needed to open this litigation floodgate is a legal theory- and now you are reading this, you have it. In practice, all that is usually needed are properly written and certified lawyer letters and settlement of small claims court actions recover the merchant's legal fees which their lawyer (me?) will be more than happy to do! Let's see a blizzard of law suits so we can save our favorite old quirky places from the wrecking ball. Default judgements can sink even the biggest boat. This old fogey wants to see these companies tank for the misery they have caused to hundreds of thousands of good, hard working people, at the hands of bullies.
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Now you, the Mom and Pop merchant, can stop the bad reviews, and then you and a few of your friends can log in to write a "good review" of your place, and give you the time you need to invest in your property to improve it rather than face bankruptcy and have to close down because of an heartless reviewer. Note: reviews must NOT be posted from the merchant's computer or from the merchant's internet connection or email address, because travel-review site tracks the IP(connection), browser "cookies", and possibly the MAC(computer) address and can block the posting. You must use computers at a friends house, public library, local community college, UPS mailbox store, or FedEx center for example-- a different computer for EACH review. Clear the browser's cookies before you access the site. Also, Craigslist ads have surfaced for PayPal-paid services "TripAdvisor Help" that will post favorable, or unfavorable, patron reviews (using proxy servers to change IP address probably).
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The merchant can file the following charges, and the traveler posting a review can be subject to:
(Prosecutors and Attorneys General take note)
1) a criminal trespass charge,
2) a criminal charge for theft of confidential information while on private property,
3) a criminal extortion or blackmail charge for threatening to post a bad review if the merchant won't refund money,
4) tortious interference with business activities charge for maliciously interfering with the merchant's ability to conduct business,
5) a civil suit for damages from ignoring terms of sale or posted signage and/or any of the above, and
6) the travel-review site such as TripAdvisor can be charged under "Contributory Liability" with any of the above AND be subject to damages because it facilitated a crime and then refused to remove the listing.

These charges are not a joke. That bad review you post can DESTROY A MERCHANT'S LIVELIHOOD just as sure has if you took a gun and shot their legs up. He may have children in college that he will no longer be able to afford, or he may not be able to afford his family's health insurance bill, miss urgent medical care and become ill. Most merchant don't choose to have deficiencies - economics force them into it. How is the economy today? You are cruel to exploit that for your ego to post a review. And, a person like myself, may be a happy patron but I can no longer go there because it has closed due to your review describing it to be a "dump." Also, the next Wal Mart may be destroyed before it gets out of the starting gate, which should be of great concern to Wall Street. And, just like "free speech" does not allow you to yell "fire" in a crowded theater, it also does not allow you to take private information you learn as a patron on private property and "Yelp" it as a reviewer on public media--without permission of the merchant. Prosecutors and Attorneys Generals, as well as professional associations like Jay Karen's PAII (innkeepingblog.com), need to gain realization of these new cyber-crimes and lobby that existing laws be applied and enforced.

Reportedly, with TripAdvisor, large numbers of "reviews" have been disappearing. For example, that is likely what happened with Frank (Posted on November 16, 2009, 11:26 AM on http://current.newsweek.com/budgettravel/2009/06/TripAdvisor_tries_to_respond_t.html ): "I know of an inn owner who contacts those who write negative reviews and somehow has the reviewed take them down. I don't know how he does it but I'm sure its a monetary incentive. I've seen it happen twice." Monetary incentive, Frank? Can you say, "litigation expense" and "stock price falling"?

TripAdvisor, and all other opinion and social networking sites, might consider a paid "service" granting unlimited rights for merchants to remove their business listings from their sites (by week, month, or permanently) by placing a link and for a reasonable Paypal VERIFIED service fee of say, $30, so identities can be known and turned over to law enforcement agencies if needed, and to cover expense of checking web sites to be sure the removal request comes from the merchant (and not from a recently fired disgruntled employee.) Without the $30 they might become insolvent attempting to "filter" their sites. v2e4b
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