Should a company be allowed to use its own contractual fine print to take away its customers’ free speech? What fundamental rights should not be waivable?
We’ve written in the past about companies putting clauses in their form contracts that ostensibly forbid customers from posting online reviews of those companies’ products and services. Members of the Maryland House of Delegates have introduced a bill (MD H.B. 131) seeking to end the practice in Maryland. The bill’s sponsors are Dels. Jeff Waldstreicher, David Moon, Benjamin Kramer, and C.T. Wilson.
Under H.B. 131, vendors would not be allowed to use “gag clauses” in their contracts with customers—for example, an auto repair shop in Maryland wouldn’t be allowed to use a contract that tries to restrict its customers from complaining online about its services. HB 131 is closely modeled after a law that California passed in 2014.
EFF submitted a written testimony to the Maryland House of Delegates Economic Matters Committee in support of this timely bill:
H.B. 131 addresses one component of a larger issue that has troubled us for years: companies hiding terms in form contracts designed to rob customers of their rights. Whether it’s a restrictive terms-of-service agreement waiving a customer’s right to modify the software on her phone or a dentist’s contract forbidding his patient from leaving a negative review, the principle is the same: contracts should not be used to waive consumers’ rights. This is especially true when consumers don’t have a meaningful opportunity to negotiate contract terms.
We’ve been following the disturbing trend of vendors burying clauses in their contracts that bar customers from leaving reviews of their products and services. When these cases have gone to trial, courts have reliably sided with the customer; unfortunately, that hasn’t stopped the practice. For every high-profile story of a customer fighting back against this unfair business practice, there are many more stories we’ll never hear: stories of customers who simply gave up under a company’s pressure to pay a fine or delete a review. Because legal gray areas are fertile ground for legal bullying, the law should make it clear that customers have every right to speak their mind, even if a company’s form contract says otherwise.
We recommended two possible improvements to the bill. We noted that the bill only applies to “goods or services that are primarily for personal, household, or family purposes”—we’re not sure why the drafters chose to limit its scope that way.
We also suggested that the House consider addressing a related practice: some vendors claim in their form contracts to own intellectual property rights in a customer’s future reviews. The companies may then attempt to remove a negative review by filing a takedown request under the Digital Millennium Copyright Act. The Consumer Review Freedom Act, a similar bill that recently passed the U.S. Senate, would ban both practices.
Our recommendations aside, it’s great to see another state addressing anti-review contracts. Both at the state and national levels, we hope to see lawmakers do more to protect people’s rights from one-sided, unfair contracts.