Wednesday, November 11, 2015

Protecting consumers' right to gripe -- Nov. 12, 2015 column


Alice Roosevelt Longworth, Teddy Roosevelt’s daughter, had a pillow in her upstairs sitting room embroidered with the invitation, “If you can’t say something good about someone, sit right here by me.”

Today, the Internet sits right by all of us, churning out critiques that are far more than juicy gossip. Irate consumers who once spouted off only to friends and family about haphazard customer service, shoddy products and careless workmanship now have, at their fingertips, a megaphone to the world.

Customers are empowered by the wisdom of the crowd as online reviews help us choose everything from donuts and dog walkers to dentists and vacation destinations.  

We take some reviews with a shaker of salt, knowing that some are fake, posted by unscrupulous competitors. We can ignore unsigned rants, but people who sign their reviews should have a right to air their opinions.      

Unfortunately, more and more companies and even medical professionals want to stifle complaints with gag or anti-disparagement clauses. These provisions show up in “Terms and Conditions” boilerplate and form contracts. Since most people rarely read the fine print, they don’t realize they’ve agreed not to share negative comments until they’re threatened with warnings, fees and lawsuits.  

Such intimidation should not happen, and, the old joke aside, Washington actually may be here to help.

The Federal Trade Commission in September sued marketers of a line of weight-loss products alleging that they made false claims for their products and then threatened to enforce a gag clause to stop consumers from posting negative reviews and testimonials online. 

A federal judge last month issued an injunction, stopping Roca Labs from telling customers they can’t post bad product reviews.

California last year passed a law prohibiting companies from inserting language in contracts that waives a consumer’s right to make “any statement” about goods and services. But individual lawsuits and separate state laws take time.

Congress is considering a federal law to eliminate confusion about what’s allowed where. The Consumer Review Freedom Act would ban non-disparagement claims in form contracts while still allowing companies to pursue defamation cases in court. The bills in the House and Senate have bipartisan support as well as backing from Angie’s List and Yelp.

A Senate Commerce Committee hearing Nov. 4 featured a victim of a gag clause, Jen Palmer of Utah. Her husband, John, bought a key chain and desk toy that together cost under $20 as Christmas gifts in 2008 from online retailer, but the items never arrived.

After the couple couldn’t reach anyone at the company by phone, Jen Palmer wrote a negative review on Three years later, KlearGear contacted John Palmer, insisting that his wife’s negative review be taken down or that he pay a $3,500 fine for violating a non-disparagement clause. KlearGear claimed the items were never paid for. has a policy of not removing reviews. Plus, the Palmers said the non-disparagement clause wasn’t part of KlearGear’s fine print until well after the purchase. When Palmer did not pay the penalty, KlearGear reported an unpaid debt of $3,500 on his credit report, resulting in delays getting loans and financing for a furnace.

Unable to repair the credit score, Jen Palmer finally asked a television station in Salt Lake City for help. Public Citizen, a consumer advocacy organization, saw the story and took the case. KlearGear did not respond to the lawsuit, and a federal judge awarded the couple more than $300,000. KlearGear, however, is based in France and has not paid a penny.

A spokesman said the company’s contracts are enforceable in the United States because business transactions are exempt from First Amendment rights, adding, “If a customer disagrees with any of a merchant’s policies, they are free to shop elsewhere,” the Associated Press reported.

“The only two things we wanted,” Jen Palmer told the senators, was “my husband’s credit to be cleaned, and we wanted to make sure this would never happen to anyone else.”

She’s right. Companies should not be allowed to bully or silence consumers who have suffered bad service or products. Congress should act to protect consumers’ right to gripe, especially as we rely on the Internet to help us decide what to buy and where to shop, eat and stay.

We all should be able to discover the good, the bad and the ugly before we spend our hard-earned money.

©2015 Marsha Mercer. All rights reserved.

No comments:

Post a Comment