Self-help against non-disparagement clauses?

by Paul Alan Levy
A comment to my recent blog post about Prestigious Pets, a Dallas pet care company that recently sued two of its customers for negative reviews, suggested an interesting approach for dealing with businesses that use non-disparagement clauses to block customers from posting accurate but unflattering reviews.  Although consumer advocates place hope that the possible passage of the Consumer Review Freedom Act might prove an exception to an otherwise dysfunctional Congress, “Rob D” suggests that, in the meantime, review sites engage in self-help by posting a warning label on the page of any business that is known to have included non-disparagement clauses in its contracts.  That way, he (or she) argues, consumers will know that they cannot be confident based on the presence of several four and five star ratings that other consumers have not had negative experiences; they will also learn that they can place little confidence in a high average rating because negative ratings have been unfairly excluded.

It is the review sites that will have to place the labels because, on most such sites, the Terms of Service demand that reviewers must have been customers of the business (or, at least, have had a personal experience that led them not to accept a relationship with the business).  In the case of Prestigious Pets, for example, in the immediate aftermath of news coverage of the company's lawsuit, the Yelp page was flooded with one-star reviews denouncing the suit and the non-disparagement clause; but those reviews are gone, despite the fact that they conveyed useful information about the business, because Yelp noticed that the reviews were from non-customers and hence were not allowed by the Terms of Service.  

Review sites have long struggled with the best way to address business behavior that distorts a business's reputation on their sites.  Trip Advisor, for example, places a red penalty signal on pages where possible fraud has been detected; their deployment has been known to distress the business concerned.  Yelp, too, has displayed "consumer alerts" in such situations.

Indeed, review sites might take Rob D's idea a step further by borrowing from Angie’s List concept of the “penalty box.”  On that review site, a business that does not respond adequately to consumer complaints is placed in the “Penalty Box” and hence it is excluded from category and keyword searches.   Thus, only searchers who already know the name of the business can locate it on Angie's List and read what other customers have had to say about their experiences.  For businesses in a metropolitan area that depend on a site like Angie’s List  or Yelp to reach the attention of potential customers, exclusion from the search function can be a serious blow.  (For a site like Yelp that is not behind a paywall, exclusion from Yelp's own search engine would have to be complemented by the use of robots.txt on the business's own page).


In response to this blog post, I heard from both Angie's List and Trip Advisor about the means that they use to warn its users about the distortive impact of gag clauses.  Trip Advisor displays this sort of warning about companies that deploy gag clauses. Angie’s List already uses its “penalty box” procedure to prevent businesses that employ such clauses from  coming to the attention of its users.  Because Angie’s List is a subscription service I cannot provide a URL, but I have permission to display this redacted image from its web site.  I have also been told that, when Medical Justice was in the business of promoting such clauses, RateMD's employed flags as well.

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