A bill has recently been introduced in the U.S. Senate (S.2044) called the Consumer Review Freedom Act. Its core provision outlaws non-disparagement clauses for online reviews.
What are non-disparagement clauses? Increasingly, businesses are writing into their terms of sale language that prohibits their customers from posting unfavorable reviews about them online, often subjecting them to stiff penalties if they do.
While most people see their online reviews as a simple freedom of speech issue, non-disparagement clauses can lead people to worry that perhaps their online reviews are not protected speech. It’s this potential chilling effect that this legislation seeks to end.
I certainly have sympathy for small businesses that have been subjected to unfair, inaccurate and mean-spirited reviews. Yet at the same time, resorting to non-disparagement clauses is a heavy-handed and clumsy response. Moreover, they have incredibly bad optics, something a number of businesses have learned when they tried to enforce this legal language and the dispute got picked up by the media.
This proposed legislation isn’t the last word in terms of the law of online reviews. Further balancing is needed. But as a way to make it clear to consumers that they are free to post their opinions online, it’s a positive development.