Dec. 15, 2016
Consumer Review Fairness Act Will Provide Welcome Protection for Online Commenters
Statement of Paul Alan Levy, Attorney, Public Citizen
Note: On Wednesday, President Barack Obama signed the Consumer Review Fairness Act into law. The act is designed to protect consumers against lawsuits brought to challenge opinions that consumers post online about businesses. The bill voids “non-disparagement clauses,” which often are tucked into the fine print of the terms of an agreement to do business with a company, and prohibit customers from expressing criticisms about the businesses. The legislation also voids penalties imposed on customers who post critical reviews.
The Consumer Review Fairness Act is a welcome law. Consumers should be able to comment about businesses and services, and this law will help ensure that they can do so.
Businesses increasingly use non-disparagement clauses to suppress truthful criticism and skew the marketplace of ideas by allowing only positive reviews and suppressing negative ones. Non-disparagement clauses not only prevent consumers from expressing themselves but also deprive prospective customers of balanced and truthful information on which they can base their decisions about where to do business. What’s worse, most consumers are unaware when they have agreed to a non-disparagement clause curtailing their First Amendment rights.
Businesses that are disparaged based on false statements can sue for defamation if a consumer review is really hurting them.
Among the ongoing matters likely to be affected are:
· Prestigious Pets v. Duchouquette. In this case, aDallas pet-sitting company brought a small claims proceeding against a couple in Plano, Texas, after one of them posted an online review suggesting the pet sitting service had overfed the couple’s fish. The company claimed that the review was defamatory and that the posting violated the non-disparagement clause in the standard contract that had been signed. A trial court dismissed the case, but the business has said it will appeal that ruling.
· Galland v. Johnston. An Oregon couple is being sued in federal court in New York for posting a review on “VRBO” of a vacation apartment they rented.
· Sports teams will have to reconsider language in form season-ticket contracts that forbid consumers from describing games and posting pictures on social media. Washington, D.C., soccer team DC United told me today that they are preparing a revision of the language in their form contract.