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The Trouble With Trolls

Trolls, you’ve seen them in comments sections, on news sites, and on social media. They are a part of the internet age we live in. It has been said that the best part of the internet is that it gives everyone a voice, but the worst part…is it gives EVERYONE a voice.

E-commerce conducted on the internet as exploded over the last few years striking fear into the hearts of brick and mortar stores and contributing to the closure of some of the longest running brands. But what the internet giveth the internet, and the trolls that live there, can taketh away.

Consumer posted information about merchants, goods, and services has become a rich source of information for consumers researching a purchase online with reviews posted on websites such as Yelp, Amazon, and TripAdvisor, on apps, and on social media such as Facebook and Twitter. The reviews have taken on great significance in the shopping experiences of millions of consumers. Indeed, positive reviews can greatly enhance a company’s profitability, negative reviews can be devastating. Some of those negative reviews are part of a larger online phenomenon known as the “online disinhibition effect,” or, more simply –internet trolls.

Some companies had begun using non-disparagement clauses to contractually prohibit negative reviews. But the public reacted negatively to the attempt to completely ban the negative reviews from being posted online. Then in 2016 Congress enacted the Consumer Review Fairness Act which largely (but not completely) prohibits clauses that would prevent such reviews. The concern of companies over “troll-like” reviews, often posted out of spite, remains valid. In fact, the Consumer Review Fairness Act still allows contract clauses which prohibit reviews that are defamatory, and also reviews that are “abusive.”

Abusive reviews which should still be contractually prohibitable include the virulent, excessively negative“troll-like” reviews. (One important caveat—to date, California, Maryland, and Illinois have enacted their own state laws banning non-disparagement clauses, which do not presently contain the “abusive”exception as does the CRFA, and thus merchants subject to these laws cannot ban any consumer reviews of any type—troll or otherwise).

The law says it’s OK to prohibit or remove a review that:

  1. contains confidential or private information – for example, a person’s financial, medical, or personnel file information or a company’s trade secrets;
  2. is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic;
  3. is unrelated to the company’s products or services; or
  4. is clearly false or misleading.

However, it’s unlikely that a consumer’s assessment or opinion with which you disagree meets the “clearly false or misleading” standard.

Congress gave enforcement authority to the Federal Trade Commission and the state Attorneys General. The law specifies that a violation of the CRFA will be treated the same as violating an FTC rule defining an unfair or deceptive act or practice. This means that a company in violation could be subject to financial penalties, as well as a federal court order.

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