In December, a major blow was struck in favor of consumers' freedom of speech-and relatively few even knew it had occurred.
On December 14, while most of us consumers were bustling around preparing for holiday festivities and purchasing those last gifts, the U.S. Senate was voting unanimously to pass the Consumer Review Freedom Act of 2015. Surely, it's nigh unto a Christmas miracle for the U.S. Senate to vote unanimously on anything nowadays. But even better is the benefit and protection this bill promises to consumers who voice their opinions about the companies with which they do business.
In recent months, the right of consumers to speak their minds about companies has been under serious threat.
In 2012, angered by a negative Yelp review about their business, Hadeed Carpet Cleaning filed a lawsuit against the website, hoping to force them to reveal the identities of their reviewers.
Hotels and owners of vacation rentals sought to penalize former guests after they left negative online reviews about their accommodations.
Even doctors began slipping clauses into their paperwork that prevented patients from speaking negatively about their services online, under threat of lawsuit.
Indeed, 2015 was a crucial year for the freedom of speech of consumers-their ability to post reviews about companies without risk of retaliation. While the Consumer Review Freedom Act has not been voted into law yet-it still has to clear the House of Representatives-the Senate should be lauded for acknowledging this issue and acting swiftly and decisively. Yes, high-fives are in order.
What does this law, if passed, mean for me and you as consumers? The following are four huge reasons why you should give your Senator a big hug, a high-five, etc., the next time you see them, for voting for the Consumer Review Freedom Act:
As companies included anti-review clauses in their terms of service and lawsuits were leveled against consumers, it was up to individual judges to sort things out. But they weren't dealing with things people said on picket lines or on the radio. They had to sort out how First Amendment protections applied in a world where consumers could tell everyone about their experience with a company and their review could have real ramifications for that company's well-being. The rulings in these lawsuits were all over the map, and the impact of said anti-review clauses were potentially huge.
Earlier in 2015, Eric Goldman at Forbes lamented just how widespread the damage could be:
"Although it may be hard to believe any business would ever ask its customers to do something so anti-consumer, it's likely that millions of Americans have agreed to such clauses."
Would the majority of American consumers simply be deterred by lawsuits and clauses and remain silent about negative experiences? Even if the consumer had been truthful in their review, the threat of legal action might be too costly and daunting for most. Would consumers just forfeit their right to free speech?
But looking forward to the passage of the Act, Goldman explains further:
"The Consumer Review Freedom Act of 2015 is an example of a law that would helpfully supplement the First Amendment's protection of free speech. The Act would prevent businesses from contractually restricting their customers from reviewing them online..."
In other words, the Consumer Review Freedom Act was designed, first and foremost, to unfetter consumers' right to speak out about their experiences with companies.
And, since every law for freedom of speech sets precedent for those to come, this is a big deal not just for consumer reviews, but for the survival of free speech itself.
Earlier this year, nutraceutical company Roca Labs was sued by regulators. Their alleged crime? Bringing lawsuits against its own members and affiliates because they spoke out about negative side effects they'd experienced with the company's weight loss products. The lawsuits were based on this clause, which (no joke) comes directly from their terms and conditions that are agreed to by all of their employees, customers, and affiliates:
"You agree that regardless of your personal experience with RL, you will not disparage RL and/or any of its employees, products or services. This means that you will not speak, publish, cause to be published, print, review, blog, or otherwise write negatively about RL, or its products or employees in any way. This encompasses all forms of media, including and especially the internet.
"If you breach this Agreement, as determined by RL in its sole discretion, all discounts will be waived and you agree to pay the full price for your product. In addition, we retain all legal rights and remedies against the breaching customer for breach of contract and any other appropriate causes of action."
One of the biggest benefits of the Act is that it prohibits this kind of language, which forces consumers to agree to ridiculous terms if they want goods or services from a company. If the Act becomes law, carpet cleaning businesses, doctors, rental owners, hoteliers, or any other companies will not be able to put language in their terms of service that would "threaten fines for expressing opinions."
Tom and Terri Dorrow stayed at a vacation rental in Scottsdale, and when it failed to meet their expectations, they posted a detailed negative review about their stay on the VRBO.com website. Shortly thereafter they received this from the rental property management company:
"It has come to our attention that you have written an unauthorized review regarding your stay at a home managed by Progressive Management Concepts. If this review is published by VRBO.com, you will be in violation of the confidentiality clause of the rental contract you agreed to when you made your reservation."
The Dorrows refused to oblige their request, and the property management company charged $500 to their credit card.
Under current law, this scenario plays out again and again. Unhappy customer posts negative review. Under the Digital Millennium Copyright Act, the company assumes copyright and ownership of the review. Company demands that the customer take down the review, since it "belongs to them." Customer has to give in or pay for lengthy and stressful legal proceedings to have their side heard.
You can guess which option consumers usually choose.
"[The Act] targets the controversial practice of businesses, including provisions that assign the copyright in any reviews to the business," says Kimberly Chow at Technology Law Dispatch, "allowing the business to issue takedown requests under the Digital Millennium Copyright Act."
Under the Consumer Review Freedom Act, businesses can't simply invoke the Digital Millennium Act to sweep negative reviews under the rug. And this gives the upper hand to consumers in speaking out about how companies treat them.
Up until now, free speech issues on the Internet have been the Wild West. Consumers have assumed they could say what they wanted online and that their right to free speech would be respected. Offended by negative reviews, some businesses have sought to protect their interests by suing consumers who've left them. But little has been done to spell out exactly what kinds of expressions are covered under free speech-namely those modes of expression that didn't even exist 15 years ago. Think tweets, Instagram photos, Snapchat, etc.
Wisely, the Consumer Review Freedom Act addresses this problem directly, defining "covered communications"-a communications that are protected by the Act-as:
"a person's written, verbal, or pictorial review, performance assessment of, or other similar analysis of, the products, services, or conduct of a business or person which is a party to the form contract."
In broad terms, the Act smartly covers the myriad avenues consumers can use-Facebook posts, blog comments, Yelp reviews, YouTube, and more-to speak out about their experience with a company. The Act also keeps things open-ended so that, as social media and other online technologies evolve, those communications will still be covered.
And the Act doesn't stop there. It designates the Federal Trade Commission as the key enforcer of the Act, instead of leaving the matter to be hashed out helter-skelter by local, state, circuit, federal, and Supreme Court judges. This means that, however this issue develops in the future, decisions will be centralized in one place.
Before we break out the champagne, it's worth reminding ourselves that this Act isn't law yet. It still has to go through the gauntlet of the House of Representatives, where similar legislation has stalled. Still, it's encouraging that our elected officials are taking some issues seriously, unanimously. As the ways that consumers and companies interact and communicate online are set to only grow more numerous and complex in the future, it's important that consumer free speech be protected against business that almost always have bigger pocketbooks and bully pulpits to stifle speech that doesn't serve their bottom line.