State Senator DeRoy Williams requests an analysis of the following scenarios in

determining whether the described conduct would be likely to violate New

Hampshire Law.

Direct Questions to Address:

1. Does the law properly protect the interests of both the small business
owners whose companies may be subject to review?
2. Does the law protect the interests of the consumers and public who may
find such reviews helpful?
3. If any of these scenarios are legally permissible by the NH state, but in your
opinion should nevertheless be subject to restriction, then also consider
whether the conduct is already prohibited by the sites user agreements.
(If it is probhibted by the user agreement, then perhaps that will be
enough to reassure our business leaders that corrective legislation is not
needed.)

Scenarios:

1. A customer threatens to write a negative review in a customer review

website like Yelp unless the business tries to make up for unsatisfactory
services.
a. Here, the threat alone
2. Before being served, a customer approached a business seeking
specifically-named upgrades or complimentary services in exchange for
writing a favorable review on Yelp (or similar), or for not writing a negative
one.
3. A business that is just starting out and wants to build a strong online profile
decides to provide complimentary products or services (ones that are
otherwise usually paid for) for its customers who will promise to post
reviews on Yelp.
a. NO crime, no blackmail, no worries.

Factors to consider:
 - Level of disjunction between the blackmailers leverage used (i.e.
personal interest / gain) and the advantage sought (i.e. interests of the 3rd
party whose leverage BM uses).
- Nature of relationship between the "customer"/ reviewer and the business
o Are they in contract to do business?
- Who initiated the transaction?Any person who obtains or exercises control
over, including 2attempts, another person's property, including any attempts to,
with the intent to deprive them of such property by extortion is guilty of theft.
Extortion occurs when a person threatens to do any of the following: exposing
that person to hatred, contempt or ridicule; revealing any information sought to
be concealed by the person threatened; or any other act which would not
necessarily benefit the person making the threat but would substantially harm
the recipient of the threat with respect to that person's health, safety, business,
calling, career, financial condition, reputation, or personal relationships.
Although the statute does not define substantial harm, we can assume here that
a negative review on a heavily trafficked website like Yelp would constitute as such. For
the purposes of this analysis, it assumed that the property was exchanged or that the
person did successfully exercise control of the other persons property.

Rule Explanation:
Evaluating the type / substance of the threat, the wrongful means (the
threat) independent from the wrongful objective (taking of property) is
wrong.
o This makes the type of threat the determining factor.
But one must also consider the circumstances of potential harm to the
person receiving the threat, as well as the benefit the person making the
threat receives.
In State v. Hynes, the defendant argued that because his threat to bring civil
litigation did not rise to the level of criminal extortion because that is not the type
of harm legistiture intended to encompass in the statute. He argues that a threat
to sue [is just merely words that does not instill fear], and perhaps he claims that
he even has the right to threaten to sue by way of protecting the interest of his
own and the public.

Scenarios:

1. A customer threatens to write a negative review in a customer review

website like Yelp unless the business tries to make up for unsatisfactory
services.
The conduct in Scenario 1 does violate theft by ere, the customer makes a
threat to the business owner, and it is not certain whether the customer will
substantially benefit, yet the business stands to suffer from substantial harm by
means of the negative review. The uncertainty of whether the businesss
attempt to make up for the unsatisfactory service will satisfy the customer
causes the business owner to finitely face the potential substantial harm of a
bad Yelp review.
b. Thus, this is a scnarios that violates NH RSA law.

c. However, the paradox exsists when considering that fact that writing a
negative Yelp review alone is not criminal extortion, but using it as
leverage does rise to the level of criminal extortion because a negative
review has the potential to cause extraordinary harm on the business.

2. Before being served, a customer approached a business seeking

specifically-named upgrades or complimentary services in exchange for
writing a favorable review on Yelp (or similar), or for not writing a negative
one.

1. Here, a person who has not yet been serviced by the business
makes a threat to write a bad review. Whether the threatener will
or will not substantially benefit is uncertain, and that will ultimately
be determined by the threatener. Yet, the threat of a potential bad
review does cause substantial harm to the business because the
amount the business has to exchange with the person is left open
ended. Again, the potential customer can keep asking for more
and more, to the extent that the complimentary gifts might never
be enough for a favorable review.

2. Thus, this too especially since the person is not yet entitled to have
the right to review, this is a violation of the NH RSA law.

3. A business that is just starting out and wants to build a strong online profile
decides to provide complimentary products or services (ones that are
otherwise usually paid for) for its customers who will promise to post
reviews on Yelp.
a. A business owner who offers promotional products or services in
exchange for customers promises to post Yelp reviews is not prohibited
by the NH RSA statute. The statute prohibits unlawful acquisitions of
 property by means of threats, where the threat may substantially harm
the intended recipient. In this scenario, neither the business owner or
the customer threatens either party, and the exchange for a product
or a Yelp review does not result in substantial harm. Rather, both parties
may benefit from the promotional exchange.

The NH statute does account for the interests of the business and customers
engaging on the Yelp platform. Businesses now operate in a landscape where
their online reputation is built upon customer reviews, and subsequently, a bad
review has potential to scar the business. NH law criminalizes customers who
threaten to write bad reviews, whereby protecting the interests of the business.
In these scenarios, like scenario 1, the customer leverages his silence (refraining
from writing a bad Yelp review) about the unsatisfactory service in exchange for
the businesss product or service at the expense of the business. Regardless of
whether the bad review has merit, it still poses harm to the business. The
customers threat makes the business subservient to him for an undetermined
period of time, potentially infinitely. The business can suffer a loss in profits over
time if customers continue to threaten, and thus the statute correctly protects
the business in this sense.

However, the customer in this scenario is not just bargaining with their own
interest, but also with the interests of the public Yelp users. The online forum
welcomes both good and bad reviews to help the public make informed
decisions about their purchases. The statute has the potential to be a disservice
to the public and the business by prohibiting the customers incentive to speak
the truth about the unsatisfactory service.
Similarly, in Scenario 2,

Protecting the interests of the public/ people (customers) who use Yelp as
review tool.

Does the statute properly protect the interests of the business owners and the customers
and general Yelp public?
 Historically at (in) common law, extortion was characterized by the corrupt
taking of a fee by a public officer, using his status or title, where the fee was not
justified. Eventually, many states enacted extortion statutes that broadened the scope
extortionate conduct, and in New Hampshire, the statute criminalizes "unlawful
acquisition of property by means of threats." (Hynes). As such, the statute accounts for
a broad range of policy concerns, and arguably disrupts the delicate balance of interests
between the businesses and general public.

The extortion statute protects the property rights of businesses, especially those
businesses that are vulnerable to consumers who might otherwise extort them, like in
Scenario 1 and 2. The online review system is most effective when the information is
unbiased and unrestrained, so that people and businesses can exchange influential
candid feedback. However, since legitimate and coered ays the motivation behind the
reviewer who writes a positive or negative comment, danger lurks in the fiber optics.
Consumers know that businesses that strive to minimize their negative reviews, are
even more

can be will want to minimize the Without the statute, the consumer could
constantly threaten businesses that theyUnder the free market policy, businesses strive
to satisfy customers and encourage them provide feedback, good and bad. And in
return, businesses offer freebies or some other remedy to make up for their bad
experience. But without any strict boundaries (provided by legal regulation), customers
can abuse their review writing powers to exploit businesses, especially small
businesses) who may be easily susceptible getting a bad reputation from bad reviews.

capable of In the natural by criminalizing those consumers who may acquire

such property by extortion and helps their interest in minimizing negative reviews,
such overly broad provisions like section (i), the catch-all provision, unduly
criminalizes bargaining conduct that potentially causes substantial harm.
Subsequently, consumers will refrain from writing any negative reviews in fear of
persecution and ultimately compromises the general publics right to unbiased
information online.

If the law didnt stop these customers with bad intentions from writing
unjustified reviews, the information pipeline would quickly fill up with . Thus, the
statute not only protects the interests of the businesses but it also protects the interests
of the public who rely on Yelp reviews. Some may argue that the statute includes
provisions that are too broad, but

Ironically, this government intervention may potentially hurt the business

overtime. Under the free market policy, businesses strive to satisfy customers and
encourage them provide feedback, good and bad. Constructive feedback from an
unsatisfied customer is tremendously insightful to a business, as a means to assess and
improve. In return, rather than losing a customers repeat business to a competitor, the
business will offer a discount or some other incentive to ensure their continued support.
The statute strains the flow of vital information to businesses which gives them a
competitive edge, and ultimately will lose their share of customers to competitors who
can better serve the publics needs.

You want the information and reviews to be accurate because you dont want
business taking a loss just to make up for the illegitimate negative review.

Part 3

In recognition of the delicate balancing act and the exploitative opportunities

abound, there are other provisions in place, like Yelps User Guidelines, that aim to
curtail such behavior. For example, Yelps guidelines include a Business Owner
Guidelines section that specifically addresses the issue of biased comments and askes
businesses not to ask for user reviews in exchange for freebies.

Scenario 3, although not prohibited by the statute, is an example of such activity the
guidelines discourage the businesses from doing.

The fact that Yelp does not someone verify the account users nor does it filter the user
comments, makes easy for anybody to cause a lot of potential harm. Soe

e guidelines for example, aim to restrict exploitative behaviors of both businesses and
users that would otherwise give them an advantage and customers provides some relief
to regain the balance of interest.

Ultimately, States should not rely on mere User Guidelines to protect the interests of
their people.