The Gross National Debt

Wednesday, October 21, 2015

Right this way to see the great egress!

Dunno how true it is, but a famous sideshow barker once encouraged crowds to leave his tent by telling them to go see the great egress.

If you don't know what the egress is, I shan't tell you.

Side shows are famous for giving the customer a lot less than what he paid for. I remember going to one many years ago and a carny was sitting in a box with a few red-knee tarantulas. Yeah.

Today's side show is online, especially with "reviews."

Amazon is suing people who write fake reviews through a freelancer site called Fiverr. Fiverr, reportedly, is cooperating.

Full disclaimer: I have a Fiverr account where I sell work and buy press release distribution. I do write reviews; posted one this morning to Ebay for a Lem Meat cuber I bought. Have a few up on Yelp as well for places I have visited.

Here's the problem.

The First Amendment. This protects free speech. So, you can write any kind of review you want to about any place, product or service. You can post it.

It doesn't matter if you actually used the service, visited the place or bought the product. The First Amendment gives you the right to sound off.

But. In this case, people are buying "faked" reviews on Fiverr. Commercial speech, advertising, does not have the same First Amendment protections as non-commercial speech.

The question is: Are these Fiverr reviews advertising or non-commercial speech?

You say, "Well, they got paid to write it. It has to be commercial speech."

I get paid to write stories for the newspaper I run. This is clearly not commercial speech. I also write press releases announcing all kinds of things. I get paid for this. This is also clearly not commercial speech.

Is writing a review commercial speech? No. Is writing a faked review and getting paid for it commercial speech? I say no.

In the past when people have gone after commercial speech and won, they went after the company making false or misleading claims.

These Fiverr writers are hired to write. Free speech. They hand over ALL rights of the work to the company purchasing the work. They have no control over how the work is used.

Add to this, Amazon will have to prove, review by review, that each of these writers actually wrote a fake review. How will Amazon prove these people never used the things reviewed?

And, if they are going after faked reviews, then what about the Unicorn Meat reviews?

You could say that is libel, but libel standards do not apply to groups of more than 25 people.

The courts have already ruled that review websites are free speech. Places like Yelp don't have to follow the same rules of commercial speech, an appellate court ruled.

Amazon has a serious fight ahead, one I think it will lose.

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