The Consumer Review Fairness Act Is an Win for Free Speech Online, Despite Possible Flaw

President Obama recently signed the Consumer Review Fairness Act of 2016 (H.R. 5111), which passed both houses of Congress unanimously. The bill addresses a dangerous trend: businesses inserting clauses into their form contracts that attempt to limit their customers’ ability to criticize products and services online. We’re pleased to see Congress taking a big step to protect free speech online and rein in abusive form contracts.

The CRFA tackles two different ways that businesses attempt to squash their customers’ reviews. The first is rather straightforward: simply inserting clauses into their form contracts saying that customers can’t post negative reviews online, or imposing a fine for them. For instance, the Union Street Guest House used such a contract and attempted to fine guests over their bad reviews.

The second tactic is a bit more roundabout: businesses put a clause in their contracts saying that they own the copyright to customers’ reviews. Then, when they see a review that they don’t like, they file a takedown notice under the Digital Millennium Copyright Act (DMCA). One notorious example of that trick is a form contract for doctors offered by a company called Medical Justice. The U.S. Department of Health and Human Services ordered doctors to quit using such contracts in 2013, but similar practices live on across different industries. The CRFA voids both types of contract clauses and makes it illegal for businesses to offer them.

When we’ve written previously about the CRFA, we’ve noted a potential gap in the way the law was worded. Companies may try to argue that they are allowed to craft contract clauses assigning themselves the copyright to customers’ reviews so long as the reviews are not “lawful.” Companies may then attempt to remove web content written by customers using the special censorship tools available to copyright owners under the DMCA, claiming that that content is not lawful (for example, because it allegedly defames the company). If courts—or service providers who receive takedown notices—accept that reasoning, then vendors could bypass the traditional protections for allegedly illegal speech, having content removed immediately under the DMCA rather than going through a court as it normally would for non-copyright speech claims. We are disappointed that Congress failed to clearly foreclose this abuse of form contracts and the DMCA takedown process.

Ultimately, though, anti-review contracts were already on very shaky legal ground before the CRFA passed, as were form contracts that included surprising transfers of copyright ownership. Courts have reliably sided with the customer’s freedom to write negative reviews. We will be watching closely to see if any unscrupulous companies attempt to take advantage of the ambiguous wording in the law. If that happens, the courts should shut it down.

Despite this oversight, we’re glad to see Congress standing up to the use of abusive form contracts to stifle freedom of expression. It’s telling that the bill passed both chambers unanimously: in a session that’s been marked by gridlock, this has been one area where lawmakers in both parties agree. We hope to see lawmakers build on this progress and protect customers in the next session of Congress via bills like the SPEAK FREE Act and the Justice for Telecommunications Consumers Act.