When was the last time you booked a vacation or picked a restaurant without first asking the world what they thought? From places to stay and restaurants to try, to brand selection and business loyalty, we are all heavily reliant on the input of others when making determinations about how to spend both our time and money. Feedback as it exists in the public sphere today (think Yelp, Twitter, TripAdvisor, etc.) is beneficial to consumers in helping them to make informed choices, and it can also improve the reputation of businesses and incentivize them to maintain the quality and reputation of their product or service. But while reviews can wield the power of positive influence, they also have the ability to hinder the success of a business or damage the respectability of a brand.
Business owners are privy to the potential threats posed by consumer reviews, and instead of responding to negative criticism by providing a better product or service, some have attempted to prevent the damage from being done in the first place. By including non-disparagement, or anti-review, clauses in customer contracts, business have sought to legally protect themselves from the harmful effects of public negative feedback. Customers who didn’t review the fine print when making a purchase would be surprised to receive threatening letters or news of a lawsuit after posting an unfavorable report.
Take Tom and Terri Dorow for example, who were surprised by an unusual bill after a vacation in Scottsdale, Arizona, in 2012. Unsatisfied with their stay, the couple had taken to VRBO.com to post a detailed negative review about the experience. A few days later, the Dorows received a letter from their vacation rental agency informing them that their review was in violation of the rental contract they had signed. The Dorows refused to take down their review, and in response the company that managed their rental home charged $500 to their credit card on file.
Congress has, thankfully, made moves to put a stop to this behavior. In 2016 they passed the Consumer Review Fairness Act (CRFA), which addresses three primary activities. First, companies are prohibited from using form contracts to restrict a consumer’s freedom to leave reviews about goods or services they received. Second, businesses cannot impose penalties on consumers who post reviews. Third, they are not allowed to force automatic assignment of a consumer’s copyright in his or her review to the business, as this would permit the business to order removal of the post as the new copyright owner.
The CRFA aims to protect consumers from being unfairly censored and keeps the public at large from becoming less informed about businesses and products.
Do not expect, however, to see Facebook friends or your favorite foodie blogger leading crusades against the companies stifling their right to gripe. The CRFA was enacted to protect consumers, but it does not give them the power to bring private actions to enforce these rights. The Federal Trade Commission and state attorney generals have the sole authority to enforce the CRFA, and they were only granted this power as of December 14, 2017. Given how recently the protections became effective, there is no existing case law that deciphers the various provisions of the CRFA. In anticipation of precedent-setting decisions, which will hopefully start getting issued this year, there are several gray areas within the text of the CRFA to consider.
For one, businesses are not prohibited from removing reviews from their own websites that are “clearly false or misleading.” The Federal Trade Commission has cautioned companies that a consumer’s pure opinion or assessment that a company may disagree with is not likely to meet this standard. It is still to the discretion of the courts to establish was constitutes “pure opinion.” Is a review stating that, “the room service coffee was not delivered hot,” an objective and factual statement regarding temperature or a subjective sensory perception? In order to best align with the objectives of the CRFA, courts should view public comment sections on businesses’ websites as forums that encourage feedback based on experience and rooted in opinion. Consumers look to reviews for personal accounts of experiences with a product, service, or business, often with the understanding that only one person’s view is represented by a post.
The CRFA also protects “pictorial reviews” which encompass pictures, photographs, video, illustrations, and symbols. Businesses may therefore be limited in their attempts to restrict patrons from taking photos or videos on the businesses’ premises. This could be problematic for sports stadiums, which sometimes bind season ticket holders to waive the right to post photos or videos of a game or surrounding activities on any type of media. Some restaurants, such as the famous Momofuku Ko in New York City, also impose limitations or outright prohibitions on diners attempting to photograph their meals. Creating policies that limit photography in a privately owned location is entirely within the owner’s right, so the CRFA may require some creative interpretation by courts in order to determine whether a pictorial rendering is considered a review.
The CRFA is undoubtedly a significant step towards promoting freedom of speech and preserving our ability as consumers to browse feedback and make more informed decisions about what to purchase and where to go. It will be interesting to see what types of businesses will come under fire and how courts will address the law’s ambiguities in the months to come. Until then, feel free to tell the world how you really felt about that restaurant.