ACADEMIC ARTICLE SUMMARY
Understanding the Consumer Review Fairness Act of 2016
Article Source: Michigan Telecommunications and Technology Law Review, forthcoming, 2017
Publication Date:
Time to Read: 2 minute readWritten By:
Eric GoldmanTAP Scholar
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ARTICLE SUMMARY
Summary:
The Consumer Review Fairness Act of 2016 (CRFA) bars businesses from requiring their customers to agree not to post online reviews. These “anti-review” clauses prevented consumers from leaving feedback that would identify poorly run businesses.
POLICY RELEVANCE
Policy Relevance:
The CRFA benefits the marketplace by protecting consumers’ rights of free speech.
KEY TAKEAWAYS
Key Takeaways:
- In the 2000s, doctors, dentists, and other health care providers began to insert terms in their agreements with patients to restrict patient reviews; due to health privacy law, some providers felt unable to respond to unfavorable reviews.
- Hotels, retailers, apartment complexes, and other businesses also used anti-review clauses; businesses tend to copy such clauses from one another, and anti-review clauses could have become standard across the economy.
- The CRFA makes it unlawful for a business to prohibit consumer reviews, impose a penalty for making a review, or claim ownership of consumer reviews.
- The CRFA describes anti-review clauses as unfair or deceptive trade practices, and gives the Federal Trade Commission authority to enforce the CRFA.
- The CRFA does not preempt state statutes restricting anti-review clauses or state consumer protection laws; in the long run, state courts would have inevitably refused to enforce such clauses.
- California Civil Code § 1670.8 also regulates anti-review clauses; unlike the CRFA, it applies to all contracts, not just to form contracts.
- Unscrupulous firms could try to evade the CRFA by pretending to “negotiate” the terms of the contract with the consumer; the CRFA does not protect “unlawful” reviews, so firms could prohibit consumers from leaving defamatory reviews.
- Congress should take additional measures to protect consumer reviews:
- Sites that host reviews should be shielded from lawsuits.
- Legal shortcuts to bring a rapid end to lawsuits intended to suppress free speech should be created.
- Sites that host reviews should be shielded from lawsuits.
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About Eric Goldman
Eric Goldman is a Professor of Law at Santa Clara University School of Law, where he is also Director of the school’s High Tech Law Institute. His research and teaching focuses on Internet law, intellectual property and marketing law.
