For the last six months, the company has required Web purchasers to agree to limit any online negative reviews in advance. Full House Appliances' terms and conditions, which users must consent to at check-out, include the following passage: "I agree that If I intend to provide negative feedback, the only legitimate one is based solely on verifiable and documented facts."
The terms go on to purportedly ban consumers from writing "subjective" reviews that express matters like their "personal opinions, perceptions, emotions, interpretations, feelings." For good measure, Full House Appliances additionally threatens users with "criminal libel" should they defame the company.
These threats will probably ring hollow to lawyers, given that many states no longer allow criminal prosecutions for libel; additionally, people can't be sued for libel for expressing an opinion. Likewise it's difficult to envision any judge in the country sustaining a breach of contract claim against a consumer who posts a bad review.
Nonetheless, attempts to scare users into withdrawing negative comments often work even when users have the law on their side, says Santa Clara University law professor Eric Goldman, who previously served as general counsel of review site Epinions.com. "The harm is done before you even get to court," he tells MediaPost. "Nine out of 10 people who get a nastygram are going to instantly fold."
Indeed, The New York Times, which called attention to Full House Appliance's practice, reports that Full House sent an email to a customer threatening to sue because he posted a bad review to ResellerRatings. The customer took down the review and Full House gave the customer a refund.
The newspaper attributes Full House's attempts to squelch online criticism to the "profound vulnerability that retailers now feel with the proliferation of consumer ratings sites." But surely, if anything could harm a company's reputation more than a bad review by customers, it would be suing those customers for expressing their opinions. Perhaps instead of sending the general counsel's office after disgruntled customers, the company could offer to remedy whatever complaint led to the bad review. Failing that, there's nothing to stop retailers from telling their own side of the story, either on review sites or on their own proprietary sites.
Remarkably, Full House Appliances isn't the only one attempting to use the law to intimidate users into refraining from posting reviews. In 2008, a doctor and law school graduate created the company Medical Justice in order to prevent patients from bad-mouthing doctors online.
Medical Justice creates contracts called "Mutual Agreement to Maintain Privacy" -- in which doctors promise to prevent patients from "unwanted marketing information" -- anonymous targeting by marketers -- in exchange for patients' promise to avoid posting negative reviews to Web sites. The contracts also assign the copyright in anything the patients write about their doctors to those doctors.
If patients sign these contracts and then post unflattering reviews, the company can threaten the host site with a copyright infringement lawsuit. Because review sites are immune from liability for libel by users, but not for copyright infringement, the sites have an incentive to remove the posts.
Additionally, Network Associates (now McAfee) also used to include language in its terms and conditions purporting to require that consumers obtain permission to publish reviews. That company's effort to constrain consumers' speech was shot down by New York courts years ago, thanks to Attorney General Eliot Spitzer. He sued the company and obtained an injunction requiring it to remove that language from its terms.