Commentary

New Bill Aims To Protect People's Right To Post Reviews

A bipartisan group of lawmakers today introduced a new bill that would protect consumers' rights to post bad reviews.

The Consumer Review Freedom Act of 2015 would prohibit businesses from requiring consumers to sign contracts that restrict their ability to post reviews. The measure was introduced by Representatives Darrell Issa (R-Calif), Eric Swalwell (D-Calif), Blake Farenthold (R-Texas), and Brad Sherman (D-Calif), and is backed by Yelp, Angie's List, TripAdvisor and advocacy groups. The bill provides for penalties of up to $16,000 for each day that a business requires consumers to sign non-disparagement clauses.

The measure also contains a clause aimed at prohibiting companies from attempting to squelch a review by asserting a copyright interest in it. That strategy was pioneered by the organization Medical Justice, which advised health care professionals to require prospective patients to sign away a copyright interest in any online review. Then, if a dissatisfied patient criticized a doctor on an online review forum, the doctor could threaten to sue the forum for copyright infringement.

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Earlier this year, U.S. District Court Judge Paul Crotty in Manhattan condemned that tactic. Crotty ruled that a patient's agreement to assign a copyright in any reviews to his dentist was invalid for many reasons, including that it's unethical. The judge also said that even if the dentist legitimately owned a copyright in a review, the patient would still have a “fair use” right to post it.

Medical Justice itself promised to change tactics in 2011.

Last year, California prohibited companies from restricting consumers' right to post reviews. Lawmakers in that state passed the measure soon after the married couple John Palmer and Jennifer Kulas revealed that the online retailer KlearGear tried to charge them $3,500 for posting a bad review.

KlearGear reportedly said that the couple violated a provision in its terms of service by criticizing the company on RipoffReport.com. (That clause apparently was added to the KlearGear's terms of service after the couple tried to place an order.)

When Palmer and Kulas refused to pay KlearGear, the company allegedly wrecked their credit. Palmer and Kulas subsequently sued KlearGear for violating federal fair credit laws. A federal judge awarded the couple $306,750 last July.

In New York, a state court judge 11 years ago criticized no-review clauses in contracts between companies and consumers. That decision came about after former New York State Attorney General Eliot Spitzer took action against Network Associates (now McAfee) for requiring consumers to obtain permission to publish reviews. In 2003, Spitzer won an injunction requiring the company to remove that language from its terms of service.

Despite that decision, some business owners in the state still attempt to prohibit consumers from writing reviews. Consider that when Claude and Violaine Galland rent out their Paris apartment through VRBO.com, they tell tenants not to leave online reviews.

Last year, they filed suit in federal court against two couples who allegedly violated the no-review clause -- which the Gallands refer to in court papers as a “house rule” that must be followed even in the event that “the four-horses-of-the-apocalypse emerged from doom.”

The Gallands sued for defamation and breach of contract. U.S. District Court Judge Richard Sullivan recently dismissed the defamation allegations, but not those relating to breach of contract. The Gallands are appealing that ruling to the 2nd Circuit Court of Appeals.

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