In May of 2013, Claude and Violaine Galland rented out their Paris apartment to two vacationing couples.
First, Stephen and Terri Bowden of Alabama rented the unit for around one week. After they left, James and Judith Johnston of Oregon leased the apartment for several days.
Both rental agreements allegedly contained a clause prohibiting tenants from leaving online reviews.
Those types of clauses are legally questionable, but the Gallands apparently feel very strongly about the ban -- which they refer to in court papers as a “house rule” that must be followed even in the event that “the four-horses-of-the-acopalyspe emerged from doom.”
Despite the so-called house rule, the Bowdens and Johnstons allegedly posted comments about the Gallands' home on the site vacation rental site VRBO.com.
The Bowdens allegedly wrote that the apartment was “small and noisy,” although they said it was also “attractive enough” and close to the Metro and Notre-Dame Cathedral.
"This apartment was much smaller than it appeared in the pictures,” they allegedly wrote. “There is a mirrored wall that makes it look larger than it is. ... The bathroom is also tiny. I would not recommend this for more than 2 people!” they allegedly said in a review.
The Johnstons -- who are both in their 70s, according to court papers -- allegedly wrote that they had “an awful experience” at the apartment.
“Expect a 2 story climb of narrow stairs, sloping floor, poor lighting, exposed utilities, broken and patched plaster,” they allegedly wrote. “The reviews are way too wordy and sound like the owner.”
Last year, the Gallands sued the two couples for defamation and breach of contract.
“We cannot control the malice of individuals who lead small lives in small towns, and feel important when they wallow in the new found public power of writing reviews to defame, destroy and tear businesses,” the Gallands alleged in a complaint filed in federal court in Manhattan.
They went on to criticize the vacationers as “self-appointed critics” who “stayed in stealth” in the home “without sharing an iota of a problem.”
U.S. District Court Judge Richard Sullivan dismissed the defamation counts last week but also said the Gallands could proceed with a breach of contract claim.
That decision doesn't mean the Gallands will prevail, only that they can continue to litigate. But Sullivan's ruling still is unexpected, given that a state court judge long ago condemned no-review clauses in contracts. In that previous matter, former New York State Attorney General Eliot Spitzer took action against Network Associates (now McAfee), for including language in its terms and conditions requiring consumers to obtain permission to publish reviews. In 2003, Spitzer won an injunction requiring the company to remove that language from its terms of service.
The Gallands aren't the only business owners who have tried to stop consumers from posting reviews. In one high-profile case, a company called KlearGear attempted to impose a $3,500 penalty on a couple who allegedly violated a non-disparagement clause with a bad review. KlearGear then allegedly attempted to collect the fee by reporting the couple to at least one credit agency -- effectively destroying their credit.
In that case, the couple ultimately sued KlearGear and won a default judgment for around $300,000.
But even though businesses have tried to enforce no-review clauses, these efforts tend to go nowhere. Santa Clara University law professor Eric Goldman, who called attention to the Gallands' lawsuit, says today in a column that he doesn't know of any judge ever enforcing contractual clauses that aim to suppress reviews by consumers.
Meanwhile, attempts to ban reviews spurred enough outrage that lawmakers in California passed a law prohibiting the practice. Last year, Gov. Jerry Brown in California signed a bill that outlaws contractual clauses that restrict people's right to post reviews. That measure specifies that anyone who tries to enforce a non-disparagement clause could face penalties of between $2,500 and $10,000.