In a heartening example of government defending the interests of individual citizens over those of predatory businesses, a bipartisan bill that protects consumers who write negative reviews has been passed by unanimous consent by the Senate and is now awaiting President Obama’s signature. The Consumer Review Fairness Act, which was introduced in 2014, was sponsored by Rep. Leonard Lance (R-NJ) and is co-sponsored by legislators as diverse as Joseph Kennedy III (D-MA) and Darrell Issa (R-CA). The legislation is modeled on laws from two states, Massachusetts and California, which prohibits non-disparagement clauses that are usually hidden deep within form contracts which, frankly, many people do not read and merely sign or click to “accept.”
While consumers who do not read contracts yet accept them anyway are technically consenting to be bound by the rules set forth in those contracts, including any non-disparagement or other unethical clauses hidden in the fine print, there are plenty of examples of abuse. In one well-known case, newlyweds in New York were told by a hotel that they would be fined $500 for each negative review written by any of their wedding guests. Jennifer Palmer, who testified before the Senate committee that considered the Consumer Review Fairness Act, was fined $3500 for a negative review that she and her husband had posted years before, concerning a purchase of a novelty desk toy and a bendable plastic keychain. When they didn’t pay the fine, online retailer KlearGear notified credit bureaus, damaging the Palmers’ credit.
While the Consumer Review Fairness Act could be construed as anti-business because it limits a company’s ability to manage its online reputation, the best way to maintain a good reputation is by delivering high quality products and services in a timely manner for the price agreed upon by all parties. If businesses are acting in the interests of the consumer by doing the right thing, they should have nothing to worry about. The law doesn’t cover reviews that are malicious or fake, nor does it limit a company’s ability to appeal or seek to remove reviews which are obscene, untrue, or unrelated to its goods or services. Laws prohibiting libel and defamation still apply, although small businesses may not have the time or budget to track down and prosecute undeserved negative reviews. Then again, neither do many private citizens, for that matter.
It’s worth noting that as odious as these types of contractual gag orders are, they are not a First Amendment issue. At least for now, businesses are not the same as government, and while Congress shall make no law abridging the freedom of speech, hotels, restaurants, and purveyors of cheap plastic knick-knacks had not been as limited by law. However, in a world and economy grown so large that we often do not know the people or firms with whom we do business on an intimate basis, online reviews at sites such as Yelp or Amazon are the way we assess risk and decide whether or not to make purchases. Gagging unsatisfied customers does no legitimate service to the business community, and bad actors, whether they are over-reaching corporations or malicious fake reviewers, are best rooted out. The Consumer Review Fairness Act is a politically popular law that does exactly what government is supposed to do: protect and serve the citizens in whose name it exerts power.