by Paul Alan Levy
The problem of false reviews bedevils web sites that invite customer reviews as a basis for other consumers to judge goods and services available to them on the market. Disgruntled merchants can be counted on bring defamation claims against false negative reviewers, but few merchants feel they have any incentive to sue customers who falsely praise them. And we ought to worry about the distortions of the marketplace of ideas that would be created when it is only critics who face legal pressures not to lie.
The FTC has blogger guidelines that require companies which give incentives to others to offer their endorsements, including endorsements posted online, to insist that the posters disclose their incentives so that consumers can take those financial incentives into account in deciding whether to trust the reviews. But those guidelines are not meant to be enforced against the bloggers expressing their opinions, but only against companies that hand out incentives.
Operators of the sites that host consumer commentaries have struggled to find ways to create meaningful disincentives for the false positive review. Yelp, for example, has collaborated with local consumer protection authorities to pursue merchants who arrange for the posting of false positive reviews.
Amazon recently filed suit in Washington state court against 1114 anonymous individuals who, according to Amazon’s complaint, have advertised their willingness take money for using their Amazon accounts to post fake reviews praising products available for sale on Amazon. Because of my close association with the Dendrite standard for deciding whether to compel identification of defendants who have been sued for wrongful speech, which the Washington Court of Appeals adopted earlier this year in Thomson v. Avvo where we represented a Doe defendant who had used Avvo to criticize her former divorce lawyer, I have been asked for my view of Amazon's suit against these anonymous speakers.
Amazon’s complaint alleges breach of contract (that is, violating Amazon’s Terms of Service that forbid the posting of reviews in exchange for compensation) and deceptive commercial practices under Washington law, as well as related tort claims. We have had concern about the use of subpoenas to enforce non-disparagement clauses, considering the strong public policies against using such contracts to prevent honest criticism. But it is hard to see any sound public policy objections to Amazon’s prohibition of pay-for-posting reviews. So at least as against the Doe defendants who actually posted false reviews in return for payment, these legal theories strike me as tenable, and Amazon claims to have evidence supporting its claims against those defendants.
Its theories against defendants who have only offered to post false positive reviews, without having yet succeeded in getting paid for these services, might be more problematic. (Is there a valid claim under state law for merely offering to breach a contract not to post paid reviews?).
It’s interesting that Amazon chose to file its claims in a Washington state court rather than arbitration, given that the terms of service provide for arbitration.