Legislation to Protect Critical Consumer Speech Introduced

The Consumer Review Freedom Act of 2015 has support across the political spectrum.  U.S. Reps. Darrell Issa (R-Calif.), Eric Swalwell (D-Calif.), Blake Farenthold (R-Texas) and Brad Sherman (D-Calif.), in a reprise of the 2014 version introduced by Representatives Swalwell and Sherman, have teamed up to introduce legislation that protects consumer speech by making “nondisparagement” clauses uneforceable.

H.R. 2110 can be found here.

These “gag” clauses are found increasingly in the fine print of boilerplate contracts and are designed to muzzle consumers — even when the facts are true — from expressing their dissatisfaction with a product or service. 

Consumers may be unaware that they are subject to these clauses — even if they haven’t signed a contract, according to some companies’ interpretation of their stringent boilerplate terms.  For example, some of these terms claim that customers merely by browsing as visitors on a website — regardless of whether they have made a purchase — cannot criticize or ridicule or disparage the product or service.  You cannot tell your neighbor about your experience, much less write a review online. 

Some companies alert the consumer that they are signing a “waiver of their constitutional rights to speech” against the company and to not sign if uncomfortable with the waiver, but research shows, and we all know, that virtually no one reads these these mice print boilerplate terms.

The company decides whether the consumer has violated its terms and whether it will seek to impose a fee/fine for the speech, which can be in the thousands of dollars, or a recurring fee, sometimes daily!, until a consumer removes a web review. 

Sometimes companies call these “mutual nondisparagement” agreements. This amounts to leading the consumer to believe that both the consumer and the company are giving up rights.  But when would it be in the interest of the company to criticize its customers?