A Website's Empty Threats

Last week The New York Times "Haggler" column reported about an online appliance retailer (fullhouseappliances.com) which threated to sue the poster of comments critical of the company for allegedly violating the terms of service of the retailer's web site

These terms of service apparently originally provided that

I understand that libel is a prosecutable felony in the state where FHA operates. I agree that if I intend to provide negative feedback, the only legitimate one is based solely on verifiable and documented facts, i.e., the e-mail, live chat transcript and all the terms and conditions in the ‘About Us’ section of FHA’s Web site. ... 

Only a non-response from FHA after 72 business hours from the time it is read can be used as a basis of negative feedback in the lack of response category, unless there is a specific time requirement for response in my e-mail due to the time sensitivity. 

The terms of service were changed in response to the Times story, and apparently after someone pointed out to Full House Appliances that "the state where FHA operates," which the site lists as Texas, repealed its criminal libel statute in 1974.  See 1973 Tex. Laws 399 (eff. Jan. 1, 1974) (adopting Texas Criminal Code); see also Shackelford v. State, 516 S.W.2d 180 (Tex. Crim. App. 1974) (reversing a criminal libel conviction from before the repeal, on the grounds that that the criminal complaint was defective because it was undated, while noting that “there is a serious question as to the constitutionality of the criminal libel statutes.”)

The Times spoke to someone from the company who said that it was based in Washington state. But that state also repealed its criminal libel statute, in 2009, see 2009 Wash. ch. 88, § 1 (eff. July 26, 2009) (repealing Wash. Rev. Code § 9.58.010, et. seq), after the primary provisions were held unconstitutional in Parmelee v. O'Neel, 145 Wash.App. 223, 186 P.3d 1094, 36 Media L. Rep. 1865 (2008).

After the revisions, the site's terms of service now (as this is written) provide that

We have seen firsthand how selfish and unreasonable these consumers may become simply because they felt they could hide behind a computer. This false sense of invisibility and invincibility led them to be very aggressive. You know the second you are on-line, you leave "digital footprints" behind you...[sic] We confronted them. We told them Internet is not a "Wild West". It is just another form of media. They still need to play the game by the rules. Otherwise, we will assert our legal rights to protect ourselves from libels. Libel is a prosecutable felony in many states, (update: In the jurisdiction over our operation, it is no longer a felony. It is subject to civil action. We apologize for the blunder.)

So Full House Appliances has removed its implied threat of criminal defamation charges. But that still leaves the question of whether it can legally enforce another provision of its original terms of service, which barred customers from providing negative feedback that is not based "solely on verifiable and documented facts," and then only if FHA failed to respond within 72 hours, unless the customer specifies a shorter time in his/her complaint.

In other words, can a FHA customer be said to have contracted away his/her rights to complain? 

This 2007 article from the journal Communications Law and Policy examines the enforceability of such "shrinkwrap" and "clickwrap" license provisions.  Genelle Belmas and Brian Larson, Clicking Away Your Speech Rights: The Enforceability of Gagwrap Licenses, 12 Comm. L. & Pol’y 37 (2007). While noting that "[courts] have so far not addressed the enforceability of gagwrap clauses," id. at 37, the authors conclude that "[the] right to speak and the right to hear are essential to democratic self-governance, and attempts to stunt the free flow of information through use of gagwrap clauses should be suspect." Id. at 89.

There do not appear have been any subsequent decisions on this question. See Enforceability of "Clickwrap" or "Shrinkwrap" Agreements Common in Computer Software, Hardware, and Internet Transactions, 106 A.L.R.5th 309 (2003 and supp. 2010).


So Full House Appliances' threat to make contractual claims against users' expressions of dissatisfaction, like its threat of criminal libel prosecution, is dubious.

But the question of whether web sites may enforce such provisions in their terms of service remains an open question.