Daily Dicta: In Defense of the One-Star Review
In the first cases to test the newly-enacted Consumer Review Fairness Act, the Federal Trade Commission is cracking down on businesses for including non-disparagement clauses in their standard customer agreements.
June 04, 2019 at 12:56 PM
5 minute read
I spent the past weekend in Santa Cruz, California visiting my son at college, and—like many travelers—looked at online reviews before booking a hotel.
Of course, I take the reviews with a grain of salt—the hotel I picked, for example, was panned by a person who complained about the restaurant, writing that “when I ordered my food stating I wanted no meat because I am vegan [the waiter] made fun of me saying that's sad.”
It almost made me like the place more.
Still, crowd-sourced reviews—provided there are more than a handful of commenters—in my experience are generally on target.
Unless the business interferes with the process, that is.
So kudos to the Federal Trade Commission for taking a series of actions against business owners for inserting non-disparagement clauses in their standard customer agreements. The cases are the first to test the newly-enacted Consumer Review Fairness Act.
On Monday, the agency announced that it filed and settled administrative complaints against a company that rented vacation properties in Florida and one that manages rental homes in Maryland. The actions follow three similar settlements in May against a Pennsylvania-based HVAC and electrical provider, a Massachusetts-based flooring firm and a Nevada-based horseback trail riding operation.
The FTC alleged that each of the companies violated the Consumer Review Fairness Act, which became effective on March 14, 2017. The statute bars businesses from using standardized contract provisions to threaten or penalize people for posting honest reviews. (Businesses can still go after fake or libelous reviews, or ones that disclose confidential information.)
None of the settlements include monetary penalties—just injunctive relief, plus some compliance and reporting requirements. The law specifies that a violation of the act will be treated the same as violating an FTC rule defining an unfair or deceptive act or practice.
There's an interesting push-and-pull in play here between freedom of contract and freedom of speech. After all, these defendants are not monolithic, all-powerful corporations—they're mom-and-pop operations where bargaining power between the business and consumer is more balanced.
Except some of the businesses used standard contracts with terms that ranged from obnoxious to appalling.
Consider the contract by LVTR, the Nevada horseback riding outfit, which stated, “I agree not to call Animal Control or any governmental agency or individuals if there is a discrepancy to how the horses/animals or property are taken care of.”
Excuse me?!
There's more. “I agree to our non-disparagement and protection of reputation clause…For every violation, I will be charged a $5,000.00 fine per negative review.”
(Side note: The policy doesn't seem to have worked. Online reviews include “Worst trail ride ever,” “Nightmare and horrible” and “Buyer beware.”)
Another contract used by Florida vacation rental company Shore to Please Vacations contained an even steeper penalty for negative reviews.
Buried in the middle of a lengthy disclaimer paragraph cautioning against moving the furniture or trying to break into the locked owner's closet is this gem: “By signing below, you agree not to defame or leave negative reviews (includes any review or comment deemed to be negative by a Shore to Please Vacations LLC officer or member, as well as any review less than a '5 star' or 'absolute best' rating) about this property and/or business in any print form or on any website,” it states.
As for the penalty, the contract stipulates, “Due to the difficulty in ascertaining an actual amount of damages in situations like this, breaching this clause … will immediately result in minimum liquidated damages of $25,000 paid by you to Shore to Please Vacations LLC.”
It wasn't an idle threat. According to the FTC, the owner “followed through by filing lawsuits against renters who posted reviews he deemed to be negative. He claimed in demand letters that by breaching that provision in the contract, the renters each owed him $25,000 plus attorney's fees.”
Shore to Please's settlement with the FTC required the owner to dismiss one such pending lawsuit with prejudice.
Shore to Please lawyer Daniel Uhlfelder, a solo practitioner in Santa Rosa Beach, Florida, said his client had consulted with a lawyer in drafting the contract, but it was before the passage of the Consumer Review Fairness Act.
Any violation was unintentional, he said. “My client wanted to cooperate and worked with the commission.”
Uhlfelder also noted that his client's vacation house is in an expensive and exclusive community, and that rental competition is fierce.
“In this day and age, it's extremely difficult to quantify the damage to a business based on a negative review,” he said.
I'm sure that's true. But the answer isn't to stifle the reviews (not even ones by over-sensitive vegans).
The FTC deserves credit for sending a message with these cases that consumers are entitled to the full range of opinions. And hey, I gave the Santa Cruz hotel five stars–but not because they made me.
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