Senate Introduces Consumer Review Freedom Act to Protect Online Consumer Reviews

S. 2044 – The Consumer Review Freedom Act

The text of the bill is available here.

S.2044 on Govtrack.us.

On September 16, 2015, the Senate introduced the Consumer Review Freedom Act (CRFA) of 2015. The bill was originally introduced by Senator John Thune (R-SD).  On Wednesday, November 4, 2015, the Senate Committee on Commerce, Science, and Transportation held a hearing to discuss the bill.

CRFA voids any form contract provision that prohibits or penalizes individuals for creating reviews, or transfers the intellectual property rights of reviews to the vendor.  It covers written, verbal, or pictorial reviews, performance assessments, and analyses of products, services, or conduct.  The bill protects against only standardized contracts that the individual did not have a meaningful opportunity to negotiate.  The Federal Trade Commission and state attorney generals can bring civil actions to enforce the bill.  CRFA does not provide for private individuals to bring causes of action.

The bill provides several exceptions.  It allows terms that restrict disclosure of trade secrets, privileged information, confidential information, or personnel, medical, and law enforcement records that implicate personal privacy.  It also does not affect duties of confidentiality or defamation, libel, or slander lawsuits.

Several state- and industry-specific anti-disparagement provisions have passed in recent years, but no overarching federal law currently exists.  The House introduced a similar bill last year, but that proposal has not passed.

Businesses have attempted to pursue customers for violating anti-review contracts in several high-profile incidents.  In 2013, KlearGear, an online retailer, charged two customers $3,500 pursuant to an anti-disparagement clause in the website’s terms and conditions for leaving a negative review.  When they refused, KlearGear reported the amount as unpaid debt, lowering the customers’ credit score.  In another instance, Union Street Guest House instituted a $500 fine against any guest who left a negative review.  The policy spurred much online backlash.

Online and consumer advocacy organizations have expressed support for the bill.  Robert Atkinson of the Information Technology and Innovation Foundation, for example, lauded it for allowing customers to leave honest reviews without fear.  The Electronic Frontier Foundation championed it for protecting consumer first speech.  Commentators, however, have noted several areas where the bill could go further.  Eric Goldman points out that businesses may broadly construe the trade secrets exception, and the bill does not provide means by which consumers can seek redress against infringing businesses, such as via attorneys’ fees or statutory damages.  EFF warns that the bill may penalize not just business, but also individuals, who enter into such contracts.

More information on the bill can be found here: Eric Goldman and EFF.

Sheri Pan is a third-year student at Harvard Law School interested in the intersection of technology and public interest law.