Can You Get in Trouble for Leaving an Online Review?
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UPDATED: May 19, 2018
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Katrina Arthur was unhappy with her stay at the Abbey Inn & Suites in Brown County, Indiana. The room was dirty, the air conditioning didn’t work, the water pressure was inadequate, and the smell of raw sewage was overpowering. She couldn’t find a hotel maid to clean the room, so she cleaned it herself.
When the hotel sent Arthur an email asking her to post an online review, she did. Unsurprisingly, the review was negative. Quite surprisingly — to Arthur, at least — the hotel added a $350 charge to her credit card for violating a “policy” that prohibits bad reviews.
According to a lawsuit filed by the Indiana Attorney General’s Office, the policy stated: “Guests agree that if guests find any problems with our accommodations, and fail to provide us the opportunity to address those problems while the guest is with us, and/or refuses our exclusive remedy, but then disparages us in any public manner, we will be entitled to charge their credit card an additional $350 damage. Should the guest refuse to retract any such public statements legal action may be pursued.”
The policy, implemented by the hotel’s previous owner, appeared only on the hotel’s website. Guests were not informed of the policy and did not agree to it. The current owner, who is renovating the hotel, told the press that she was unaware of the policy and that it is no longer in effect.
Whether a customer is bound by the “policy” of a business is usually a matter of contract law. Customers must generally agree to a policy before it can be enforced against the customers. For that reason, a business policy that only appears on a website that the customer may never have seen, much less have agreed to follow, will not usually be binding. (Whether the terms of a website are binding on a website user is a different question that often depends on whether the user took some action, like clicking a virtual button, to agree to be bound by the policy.)
The Attorney General contended that charging a customer money for violating a policy that the customer never saw violated Indiana’s law against “deceptive and unconscionable consumer sales practices.” An argument could be made that posting an unauthorized charge to a credit card violated a host of criminal and consumer protection laws at both the state and federal level.
In addition to making an unauthorized charge of $350 to Arthur’s credit card, Arthur received a letter from the hotel’s attorney threatening legal action. It isn’t clear what “legal action” could have been taken. An honest review is not defamatory because truth is an absolute defense in a lawsuit for libel. Arthur nevertheless felt intimidated and took down the review — which was presumably the point of the letter.
Consumers sometimes complain when their negative reviews are removed from websites. While the First Amendment guarantees freedom of speech, it protects only against the government’s suppression of protected speech. A private owner of a website generally has the right to control its content, which includes the right to remove reviews or comments that the owner deems inappropriate.
An exception to that general rule might exist if the website’s refusal to host honest but negative reviews results in deceptive advertising for a particular product or service. The Federal Trade Commission (FTC) is reportedly investigating TripAdvisor for its alleged removal of reviews by users who had been sexually assaulted at resorts. The reviewers wanted to warn potential guests, while TripAdvisor allegedly wanted to protect the resorts from bad publicity.
The Acting chair of the FTC wrote: “When consumers are unable to post honest reviews about a business, it can harm other consumers whose abilities to make well-informed purchase decisions are hindered and harm businesses that work hard to earn positive reviews.” Removing honest but negative reviews stifles competition by depriving consumers of information they can use to make informed decisions when choosing among competing businesses.
On the other hand, businesses have been known to post dishonest reviews of a competitor’s goods or services, giving the poster an unfair competitive advantage. Unlike a disparaging but factually accurate review, a dishonest negative review might lead to a lawsuit for defamation as well as the pursuit of consumer protection remedies in government enforcement actions.
It is also possible to get in trouble for posting a fake positive review. Amazon has been plagued with fake five-star reviews of products that vendors offer to customers for free in exchange for a review. The practice violates Amazon’s rules, and the company has quietly removed reviewing privileges from thousands of customers who accepted free products or other compensation in exchange for reviews.
At one point, companies gave Amazon reviewers a coupon code so they could order products for review at no cost. When Amazon began to remove reviews of products purchased with a coupon code, companies began shipping free products directly to reviewers.
Amazon responded by giving more prominent placement to “verified purchase” reviews (written by customers who purchased the product from Amazon at its full price) and by limiting customers to five reviews each week of products not purchased from Amazon. Companies then changed their strategy, offering to reimburse the purchase price through Paypal, sometimes with an additional incentive payment for writing a favorable review.
Reviewers who join “review clubs” are connected with vendors, usually from China, who typically sell products of dubious quality. The reviewers are told that they are helping family businesses get off the ground, although the purpose of a product review is to help consumers, not vendors. Many reviewers help themselves by getting free products that they sell on eBay.
Amazon says it has sued people who post fake reviews and the companies that solicit them, but occasional lawsuits do little to resolve a rampant problem. In addition to violating Amazon’s rules, posting reviews of products that were provided for free or at a deep discount, without disclosing that the product was free, violates the Federal Trade Commission’s rules concerning product endorsements. Those rules are designed to give consumers the information they need to protect themselves from fake reviews. Posting a review to Amazon or any other website of a product that the vendor gave to the reviewer for free, without disclosing that the product was free, is unlawful.
The FTC rules, like the threat of being sued by Amazon, have not protected consumers from fake reviews. It isn’t clear that the FTC has ever enforced its endorsement rules against an Amazon reviewer, although it did recently charge two brothers who allegedly offered “scam workshops to teach people how to make thousands of dollars selling goods on Amazon.” Pursuing individual reviewers is probably a low priority for the FTC, making it all the more important for consumers to be wary when they see glowing reviews of unfamiliar products.