The right to a public thumbs-down

Some people just like to complain. Some have valid reasons to. All should have the right to.

You’d think that would be a given, a core American principle. But when it came to customers’ right to publicly express dissatisfaction with a particular business, it took an act of Congress — literally — to nail it down.

Bipartisan legislation called the Consumer Review Fairness act of 2016, signed into law by President Obama last week, protects customers from legal backlash by businesses unhappy with negative reviews.

At issue are fine-print non-disparagement clauses buried within terms of service agreements in many online purchases or reservations. Though it is rare, companies have responded to negative reviews of things like hotel accommodations or dining experiences by treating such reviews as breaches of contract and demanding that customers take them down or face legal action.

The Christian Science Monitor reported this week on a high-profile case in which a California couple who posted a negative review of an online retailer received an email years later demanding that they take down the review or be fined $3,500 for violation of a non-disparagement clause in the purchase agreement. This, remember, for goods the customers never received.

According to National Public Radio, it got worse: When the couple stood firm, the retailer reported the “fine” to credit bureaus as an unpaid bill and damaged their credit rating. (A suit by Public Citizen ultimately won the couple a settlement against the company of more than $300,000.)

The consumer review law is not, of course, a free pass for libel or slander. Deliberately false and defamatory material is still subject to prosecution. It also protects the right of any private business to publish, refuse or remove whatever reviews it chooses. But it does not allow the business to retaliate against authors of online complaints.

Besides, as one business analyst told the Monitor, such backlash is bad business: “I mean, if someone complains because they’re not satisfied and … you do something negative to them,” said Kim Saxton of Indiana University’s Kelley School of Business, “that does not right the situation … you need to figure out what the root of the problem is and fix it.”

Another thing the law does not do — that no law can do — is ensure that any consumer review is even remotely representative. There are those people who will see a small wine stain on the rug of a Plaza suite on Central Park and post online that the place is a flophouse. Devastating restaurant reviews might be posted by a competitor. Glowing reviews might be written by friends or investors. Any anonymous online review should carry the ultimate implicit caveat regarding its source and accuracy.

But some reviews can be thoughtful and helpful, to customers and business owners alike.

"Just as word of mouth is used by family and friends to share experiences with particular brands or businesses,” said Sen. Jerry Moran, R-Kan., one of the law’s sponsors, “online reviews have significant benefits to consumers in their purchasing decisions."

This story was originally published December 20, 2016 at 3:23 PM with the headline "The right to a public thumbs-down."