The Good, the Bad, and the Ugly of Online Reviews: the Trouble With Trolls and a Role for Contract Law After the Consumer Review Fairness Act

• Publication year: 2019

The Good, the Bad, and the Ugly of Online Reviews: The Trouble with Trolls and a Role for Contract Law After the Consumer Review Fairness Act

Wayne R. Barnes
Texas A&M University School of Law

THE GOOD, THE BAD, AND THE UGLY OF ONLINE REVIEWS: THE TROUBLE WITH TROLLS AND A ROLE FOR CONTRACT LAW AFTER THE CONSUMER REVIEW FAIRNESS ACT

Wayne R. Barnes^*

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The advent of the internet has brought innumerable innovations to our lives. Among the innovations is the meteoric rise in the volume of e-commerce conducted on the internet. Correspondingly, consumer-posted information about merchants, goods, and services has also become a rich source of information for consumers researching a purchase online. This information takes many forms, but a major category is the narrative review describing the purchase and experience. Such reviews are posted on websites such as Yelp, Amazon, and TripAdvisor, on apps, and on social media such as Facebook and Twitter. The amount and volume of reviews has exploded in recent years, and these reviews have taken on great significance in the shopping experiences of millions of consumers. Indeed, positive reviews can greatly enhance a company's profitability, while a negative review can have devastating effects. Some negative reviews are simply defamatory; some, while couched in opinion form, are extraordinarily and virulently negative. Such reviews are part of a larger online phenomenon known as the "online disinhibition effect," or, more simply - internet trolls. Some companies had begun using non-disparagement clauses to contractually prohibit negative reviews. But the public reacted negatively to the attempt to completely ban

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reviews from being posted online, and in 2016 Congress enacted the Consumer Review Fairness Act which was intended to largely prohibit the use of clauses preventing such reviews. However, the concern of companies regarding the "troll-like" virulent reviews, often posted solely for vengeance purposes, remains valid. This Article posits that the Consumer Review Fairness Act still allows contract clauses which prohibit reviews that are defamatory, and also reviews that are "abusive." Abusive reviews which should still be contractually prohibitable include the virulent, excessively negative "troll-like" reviews. (One important caveat—to date, California, Maryland, and Illinois have enacted their own state laws banning non-disparagement clauses, which do not presently contain the "abusive" exception as does the CRFA, and thus merchants subject to these laws cannot ban any consumer reviews of any type—troll or otherwise). Moreover, this Article further argues that the implied duty of good faith and fair dealing can be argued to prohibit such abusive reviews, regardless of the presence of an express clause banning reviews.

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Table Of Contents

I. Introduction..........................................................................553

II. E-Commerce, Online Reviews, and the Advent of Non-Disparagement Clauses in the Consumer Context .. 556

A. THE GROWTH OF CONSUMER E-COMMERCE....................556
B. THE RISE OF ONLINE REVIEWS AND THEIR INFLUENCE ... 558
C. TYPES OF REVIEWERS AND REVIEWS: THE GOOD, THE BAD, AND THE UGLY..............................................................562

1. Positive Reviews.......................................................564
2. Negative (but Factual) Reviews...............................565
3. Extremely Negative Reviews (Troll Alert!)..............567

D. MERCHANTS STRIKE BACK: THE RISE OF THE NON-DISPARAGEMENT CLAUSE.............................................576

III. The Consumer Review Fairness Act................................582

A. THE TEXT OF THE ACT.....................................................583
B. THE EFFECT OF THE CRFA ON CURRENT PRACTICE.........586
C. ADDRESSING OBJECTIONS TO THIS ARTICLE'S STATUTORY ANALYSIS OF CFRA........................................................590

1. Statutory Provisions at Issue...................................591
2. Goldman's Arguments.............................................593

a. "Submission" only applies to consumer review services ............................................................. 595
b. A consumer review is not a "disclosure" ............ 595
c. The word "abusive" is constrained by the introductory language in the Paragraph (2)(C) exclusion ........................................................... 596
d. Paragraph (2)(C)'s limitation to consumer review services means that Paragraph (3)(D) is so limited ...................................................... 596
e. Is "abusive content" grammatically incorrect?... 597

3. Goldman's arguments Run Afoul of the Federal Trade Commission Guidance and Other Interpretations of CRFA........................................597

D. ONE CAUTION—DIVERGENT STATE LAWS.......................599

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IV. Consumer Reviews, Trolls, and the Duty of Good Faith and Fair Dealing..................................................601

A. THE DUTY OF GOOD FAITH AND FAIR DEALING................601
B. APPLICATION OF THE DUTY OF GOOD FAITH AND FAIR DEALING TO ABUSIVE CONSUMER REVIEWS..................603
C. ADDRESSING POTENTIAL CONSTITUTIONAL CONCERNS .. 605

V. Conclusion............................................................................610

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I. Introduction

The internet is increasingly a dominant forum for researching and purchasing goods and services.¹ The amount of information about companies, providers, goods and services has seemingly never been more vast. That information includes the explosion of online reviews, which have become a significant part of the e-shopping experience for millions of consumers. Consumers describe their experiences on various review-specific sites such as Yelp, Amazon, Angie's List, and Epinions, and also on social media platforms such as Twitter and Facebook.² These sites and platforms have created an apparent benefit for consumers insofar as they are able to gather published information about goods or services and the merchants who sell them.³

However, merchants' perspective on such online reviews is different. Merchants value their brand and their reputations.⁴ online reviews have the ability to make or break businesses.⁵ Sometimes the reviews are very favorable (e.g., "this product

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performs wonderfully, and I would recommend it to anyone"). Sometimes they are negative but factually-based (e.g., "the hotel room was not clean; there were wet towels in the bathroom when we checked in, and it was apparent that the bed sheets had not been changed since the last guest checked out."). Other times they are outright false or defamatory (e.g., "the steak was raw to the point of being unhealthy"—when, in fact, the consumer had not dined at the restaurant and was simply trying to use the review to sabotage the restaurant's business). And sometimes the reviews are uninhibited, over-the-top hyperbole (e.g., "this company is the WORST EVER; I wouldn't wish them on my WORST ENEMY!!! This business is where hope and optimism go to DIE!!!!"). Due to this wide range of online reviews, some merchants have understandably sought to manage the risks associated with negative online reviews.

One tactic used by some merchants is to include a non-disparagement clause in the contract.⁶ Such clauses typically prohibit only negative reviews or critiques about the merchant or the goods or services it provides.⁷ However, in a handful of high-profile and widely-reported instances, use and enforcement of such clauses resulted in significant public opposition and criticism.⁸ As a result, California passed a law in 2014 banning such clauses,⁹ and Maryland passed a similar law in 2016.¹⁰ Shortly thereafter, Congress passed the Consumer Review Fairness Act,¹¹ which essentially prohibits non-disparagement clauses in consumer

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contracts nationwide, except for certain contexts (e.g., trade secrets, certain medical files, information collected for law enforcement purposes, and defamatory statements). Notably, the Act also purports not to be applicable to efforts to prohibit online reviews that are "abusive," although the Act does not define "abusive." Since the enactment of the Consumer Review Fairness Act, Illinois has become the third state to enact its own state law banning such non-disparagement clauses.¹²

In the aftermath of the federal Consumer Review Fairness Act, the issue of whether non-disparagement clauses could be used in the typical consumer context seems largely settled—they cannot. However, some questions remain. What is meant by the "abusive" exception of the Act? Are there still online reviews that can be prohibited as "abusive" even if they fall short of constituting defamation or otherwise presently actionable conduct? what kind of reviews? And, since the Act could be amended or repealed in the future, does independent contract law generally, and the duty of good faith and fair dealing specifically, have any bearing on the "wild west" of the world of online reviews posted by disgruntled consumers? This Article addresses these questions. Part II will discuss the rise of internet commerce and online reviews. It will also address the effects of such reviews on businesses and the rise of non-disparagement clauses, attempts at enforcing such clauses, and the public reaction. Part III will discuss the Consumer Review Fairness Act, and the limitations it places on the use of non-disparagement clauses. Part IV will discuss the contractual duty of good faith and fair dealing and explore its potential application to a certain category of online reviews which, arguably, should still be subject to prohibition by merchants seeking to protect their business and brand. Finally, Part v will present a conclusion.

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II. E-Commerce, Online Reviews, and the Advent of Non-Disparagement Clauses in the Consumer Context

Consumers are using the internet for...