POSTED BY Jessica Gonzalez
On September 16th 2014, the Consumer Review Freedom Act of 2014 (the Act) was assigned to a congressional committee for approval. If approved, this Act would prohibit businesses from adding “non-disparagement” clauses to contracts consumers have to sign. In other words, businesses would not be able to fine or penalize those who post negative reviews online on either Yelp or any other site that houses consumer reviews. Furthermore, any contract with non-disparagement clauses or terms would be deemed unenforceable in court, even if signed by both parties. As the brainchild of California Representatives Eric Swalwell and Brad Sherman, the Act would be enforced by the Federal Trade Commission and state Attorney Generals. This proposed legislation aims to promote a consumers right to post honest reviews, whether positive or negative without the fear of litigation or penalization.
Eric Swalwell states that he was inspired to create this Act after a couple from Utah was fined $3,500 for “violating a retailer’s terms-of-sale contract by posting a bad review.” Similarly, a hotel in Hudson, New York, implemented a policy whereby the hotel will fine newly wed couples $500 for any negative review written anywhere on the Internet. The hotel claims it was all a hoax and that it never penalized anyone but various reviews of the hotel claim a different story. Either way, this policy aims to abridge a consumer’s freedom of speech by forcing them to conform to the old saying that if you don’t have anything nice to say, then don’t say it all. Swalwell argues that this type of punishment is “un-American” due to the First Amendment of the Constitution providing all citizens of the United States freedom of speech.
The Consumer Review Freedom Act of 2014 ensures that consumers are free to express and share their opinions on online platforms but it doesn’t insulate them from litigation regarding libel, defamation or slander. A company is still able to sue if it the review written is blatantly dishonest, not just negative. However, if passed the Act will prevent business from prematurely barring negative reviews. A similar law was passed into effect three weeks ago by California Governor Jerry Brown nicknamed the “Yelp Bill.” This piece of legislation prevents companies from instituting “non-disparagement” clauses into contracts with customers, making California the first and only state to ban customer non-disparagement clauses. Emulating the “Yelp Bill”, the Consumer Review Freedom Act of 2014 urges Congress to pass this legislation to defend the freedom of speech promised to citizens.
If the Act is passed, it will be a positive step towards securing consumer’s freedom of speech. With consumers actively seeking reviews for restaurants, hotels, live entertainment etc., it would be detrimental if companies were allowed to manipulate reviews by prohibiting negative ones. The integrity of writing reviews would be shattered if people couldn’t share their opinions honestly. A person cannot be fined for simply telling another person the negativities of an establishment, so why can they be fined when they are telling thousands of people on the Internet? Their speech does not change only the platform in which they chose to express themselves. Whether a consumer wants to share their genuine positive or negative experience, they should do so with impunity. Our freedom of speech does not stop at the computer keyboard; it reigns on.
Furthermore if companies can restrict a consumer’s speech with immunity then they will cast a wide net over Internet reviews. While Yelp is the popular source for consumer reviews it is not the only source. For example, a hotel can have reviews written about it on Yelp, TripAdvisor, blogs, and even the hotel’s website. Reviews proliferate online with the click of a button and consumers should not fear penalties or fines when their review begins to travel across the Internet. The consumer spent their time reflecting and writing about their experience and such an effort should not be punished. The free flow of information is an integral part of the Internet and therefore consumers should not be coerced into biting their virtual tongue.
Blogger Bio: Jessica is a staff member of the Journal of High Technology Law. She is currently a 2L at Suffolk University Law.
