Senate Commerce Committee Approves Consumer Review Freedom Act (Forbes Cross-Post)

The Consumer Review Freedom Act (S. 2044) would prevent businesses from contractually restricting their customers from writing online reviews (I call those “anti-review clauses,” but they are also called “gag clauses” and “non-disparagement clauses”). It seems ridiculous that we need any legislation at all; anti-review clauses are so obviously bogus that it’s hard to believe any legitimate business would ever use them. Still, the clauses keep showing up in the field, and courts aren’t always rejecting them. As a result, Congressional intervention can substantially advance online free speech. Last week, the Senate Commerce Committee approved the Consumer Review Freedom Act, sending the bill to the full Senate for its consideration. I hope the Senate will pass the bill quickly and the House will push forward with its companion bill (H.R. 2110).

While advancing the bill, the Commerce Committee modified the bill a bit. Among other changes, the draft adds two new exclusions to the ban, giving more discretion to businesses that run their own message boards and hire freelance photographers and videographers. The bill still vests primary enforcement authority with the Federal Trade Commission, but it now provides state enforcement entities with more enforcement flexibility. The bill also delays the law’s start date a little, which will give businesses some time to clean up their contracts after passage. I could recommend tweaking to the language on each of these points, and there were several other points I raised in my prior post that weren’t included in these revisions, but overall the quibbles don’t detract from the overall strength of the bill.

In the comments to my prior post about the bill, I heard from several small business owners who worried about the bill due to their heartfelt frustration with fake and negative reviews. While I understand how upsetting negative, and especially fake, reviews can be, those concerns have nothing to do with this bill. There’s no legitimate concern about fake or negative reviews that an anti-review clause would fix.

For more information about the Consumer Review Freedom Act, see:

* THOMAS page for S. 2044. page.
* My testimony before the Senate Commerce Committee Hearing in early November, supporting the bill. The hearing page. The hearing video.
* My 2010 article, The Regulation of Reputational Information