The Good, the Bad, and the Ugly of Online Reviews: The Trouble with Trolls and a Role for Contract Law after the Consumer Review Fairness Act

The advent of the Internet has brought innumerable innovations to our lives. Among the innovations is the meteoric rise in the volume of e-commerce conducted on the Internet. Correspondingly, consumer-posted information about merchants, goods, and services has also begun to be a rich source of information for consumers researching a purchase online. This information takes many forms, but a major category is the narrative review describing the purchase and experience. Such reviews are posted on websites such as Yelp, Amazon and TripAdvisor, on apps, and on social media such as Facebook and Twitter. The amount and volume of reviews has exploded in recent years, and these reviews have taken on great significance in the shopping experiences of millions of consumers. Indeed, positive reviews can greatly enhance a company’s profitability, while a negative review can have devastating effects. Some negative reviews are simply defamatory; some, while couched in opinion form, are extraordinarily and virulently negative. Such 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 reviews from being posted online, and in 2016 Congress enacted the Consumer Review Fairness Act which was intended to largely prohibit the use of clauses preventing such reviews. However, the concern of companies regarding the “troll-like” virulent reviews, often posted solely for vengeance purposes, remains valid. This Article posits that 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). Moreover, this Article further argues that the implied duty of good faith and fair dealing can be argued to prohibit such abusive reviews, regardless of the presence of an express clause banning reviews