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You Gotta Fight… For Your Right… To Complain

Did you know that posting negative reviews online could result in a fine for violating that site’s rules against disparaging comments?

Everyone relies heavily on the internet for answers and social media for referrals, which has influenced many businesses to take action to improve customer service, however some businesses are reacting to the reality of negative comments/reviews online by lashing out. Whether it’s a hotel or restaurant upset over a negative review on Yelp® or Foursquare® or online reviews of retailers like Amazon®, businesses are attacking those who post anything negative about them. How? Using buried “landmines” in terms & conditions (T&C) that prohibit disparaging comments.

In fact, in some cases, businesses have gone after the person even when the negative review is 100 percent accurate. One retailer even fined a couple $3,500! When they refused to pay, the business reported the fine as an unpaid debt to credit agencies harming their credit rating. In the end, a court ruled that the business violated the Fair Credit Reporting Act, and the $3,500 fine ended up being a judgment for over $300,000.1 This story appears to be a rare positive outcome, but the couple endured a lot of pain before that resolution.

As a result, some members of Congress have come together, in a rare bipartisan manner, to propose a law to protect consumers from such tactics. Introduced last fall in the House, H.R. 5499 aims to make it illegal for businesses to retaliate against legitimate negative reviews posted online. The bill’s name is the “Consumer Review Freedom Act of 2014″ and is working its way through the legislative process at present, currently referred to the Subcommittee on Commerce, Manufacturing, and Trade.2

The official Congressional summary outlines the scope as follows:

“Consumer Review Freedom Act of 2014 – Declares a provision of a form contract to be void from the inception if it: (1) prohibits or restricts a person who is a party to the contract from engaging in written, verbal, or pictorial reviews, or other similar performance assessments or analyses of, the products, services, or conduct of a business that is a party to the contract; (2) imposes penalties or fees against such a person for engaging in such communications; or (3) assigns or provides an exclusive license, or requires such a person to assign or provide an exclusive license, to any of the person’s intellectual property rights in such communications. (Thus, bars certain contract provisions that prohibit consumers from commenting publicly about businesses.)”2

In other words, the goal is to make these so-called “non-disparagement clauses” unenforceable.3 While some states, such as California, have made this practice illegal, there is no federal ban on these tactics. In essence, these clauses are waving your First Amendment rights when you accept the T&C of a site forbidding you to post anything negative about a business. These clauses also include fines for violating the T&C, which most people never read when they join a review site.

The federal law in progress is heavily modeled off of the California bill. However, despite early bipartisan support, the pro-business, Republican-controlled Congress, as a whole is likely to be against it. So the future is uncertain and this should serve as a reminder that, onerous though it may be, reading and fully appreciating a business’s T&Cs before accepting them is critical.

Sources:

1. “Congress Takes Action Against Online Review Retaliation.” http://www.techlicious.com/blog/consumer-review-freedom-act-of-2015-yelp/

2. “H.R.5499 – Consumer Review Freedom Act of 2014.” https://www.congress.gov/bill/113th-congress/house-bill/5499

3. “Federal “Review Freedom Act” Wants To Make U.S. Yelp-Safe For Consumers.” http://marketingland.com/federal-review-freedom-act-wants-to-make-us-yelp-safe-for-consumers-128278

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