Published by LawTechie - February 15, 2011 - LawTechie

Vendors, such as Full House Appliances — an online furniture store — are beginning to utilize contract-based methods of preventing consumers from posting negative reviews online. The Daily Examiner reports:

For the last six months, the company has required Web purchasers to agree to limit any online negative reviews in advance. Full House Appliances’ terms and conditions, which users must consent to at check-out, include the following passage: “I agree that If I intend to provide negative feedback, the only legitimate one is based solely on verifiable and documented facts.”

The terms go on to purportedly ban consumers from writing “subjective” reviews that express matters like their “personal opinions, perceptions, emotions, interpretations, feelings.” For good measure, Full House Appliances additionally threatens users with “criminal libel” should they defame the company.

While it is highly unlikely that a court would ever uphold such a constraint on speech, the “nuisance factor” of having to hire counsel and defend yourself in court would (and has) allowed Full House Appliances to bully customers into removing their negative reviews.

Another, highly creative method to curb online reviews was introduced by Medical Justice, a consortium of doctors who force patients to grant the company exclusive copyrights to any future reviews they publish regarding their medical care. While the infamous Section 230 of the Communications Decency Act grants publishers immunity from defamation claims, this copyright assignment method allows Medical Justice to threaten publishers with copyright infringement lawsuits should they refuse to delete unflattering customer reviews.

Whether or not a court would sanction this sort of loophole around Section 230 remains an open question. People can certainly assign future copyrights prior to the existence of such rights, whether or not such an IP assignment in a medical agreement would succeed as a matter of public policy remains to be seen.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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