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 innumerableinnovations to our lives. Among the innovations is themeteoric rise in the volume of e-commerce conducted onthe internet. Correspondingly, consumer-postedinformation about merchants, goods, and services hasalso become a rich source of information for consumersresearching a purchase online. This information takesmany forms, but a major category is the narrative reviewdescribing the purchase and experience. Such reviewsare posted on websites such as Yelp, Amazon, andTripAdvisor, on apps, and on social media such asFacebook and Twitter. The amount and volume ofreviews has exploded in recent years, and these reviewshave taken on great significance in the shoppingexperiences of millions of consumers. Indeed, positivereviews 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 andvirulently negative. Such reviews are part of a largeronline phenomenon known as the “online disinhibitioneffect,” or, more simply – internet trolls. Some companieshad begun using non-disparagement clauses tocontractually prohibit negative reviews. But the publicreacted negatively to the attempt to completely ban reviews from being posted online, and in 2016 Congressenacted the Consumer Review Fairness Act which wasintended to largely prohibit the use of clauses preventingsuch reviews. However, the concern of companiesregarding the “troll-like” virulent reviews, often postedsolely for vengeance purposes, remains valid. ThisArticle posits that the Consumer Review Fairness Actstill allows contract clauses which prohibit reviews thatare defamatory, and also reviews that are “abusive.”Abusive reviews which should still be contractuallyprohibitable include the virulent, excessively negative“troll-like” reviews. (One important caveat—to date,California, Maryland, and Illinois have enacted theirown state laws banning non-disparagement clauses,which do not presently contain the “abusive” exceptionas does the CRFA, and thus merchants subject to theselaws cannot ban any consumer reviews of any type—trollor otherwise). Moreover, this Article further argues thatthe implied duty of good faith and fair dealing can beargued to prohibit such abusive reviews, regardless ofthe presence of an express clause banning reviews