A pending bill would prohibit retribution for negative TripAdvisor and Yelp reviews, but will it really help?
The recent passage of the Consumer Review Fairness Act of 2016 in the Senate raises a new question about the reliability of online reviews for travelers.
User-generated reviews on websites such as TripAdvisor.com and Yelp.com contain information from people who claim to have stayed at a hotel, dined at a restaurant or visited an attraction. About 9 in 10 travelers consult these reviews, but only half of them trust what they read, according to surveys.
You don’t have to look far for the reasons.
Some businesses try to rig their online profiles by submitting flattering reviews of themselves, paying guests to write puff pieces about their stays or trying to muzzle those who are unhappy with the service they received. And some companies are known to place negative reviews about their competitors.
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“You might think you’re always reading accurate reviews,” says brand strategist Rachel Weingarten. “But at times, you’re pretty much going in blind.”
Bill aims to protect naysayers
The proposed law, which would prohibit companies from imposing penalties or fees against reviewers, would effectively offer these reviewers more freedom to express themselves online, particularly when they have had negative experiences.
The Senate bill needs to be reconciled in committee with the already passed House bill and signed by the president to become law.
The question is: Will the new law make the process any better?
“The Consumer Review Fairness Act will essentially make it illegal for companies to prohibit their consumers from leaving honest, negative reviews or criticisms about their goods or services online,” says Joe Sullivan, an attorney with the Atlanta law firm Taylor English. Sullivan consults with companies to determine how to respond to user-generated reviews.
“It ensures that consumers have the freedom to tell the truth,” says Eric Goldman, a professor at Santa Clara University School of Law, who testified in support of the law before the Senate Commerce Committee.
Online review sites also have supported the legislation. Laurent Crenshaw, Yelp’s director of public policy, says something needed to be done about the increasing number of “gag clauses” being slipped into contracts.
The most common example is a vacation home-rental owner who stipulates in the fine print of a contract that he may keep a deposit if a guest leaves an unflattering review.
“These clauses can have a chilling effect on consumers and businesses alike,” Crenshaw says. “People nationwide expect to have their legitimate speech protected.”
Trying to silence a reviewer with tactics such as the gag clause is “an unscrupulous way of preventing critical reviews from being published,” says Adam Medros, a senior vice president of global product at TripAdvisor. “The result is an incomplete and thus less reliable collection of information for reviewers, and an uneven playing field for that business’s competitors. Curtailing the freedom of expression of Americans is simply wrong.”
But what constitutes freedom of expression?
“It is a fairly common misconception that the First Amendment grants the public an unfettered right to voice an opinion,” says Kathleen Kirby, a partner at the Washington, D.C., law firm Wiley Rein, who has expertise in First Amendment issues.
In fact, she says, the First Amendment prohibits the government from dictating what citizens may say — but it does not prohibit private companies from trying to do so.
In other words, a business can still sue you over a negative review, even one that’s true. The most common tactic would be what’s called a strategic lawsuit against public participation, or SLAPP — essentially, a nuisance lawsuit designed to shut down a critic.
“These lawsuits are often used by businesses to threaten and intimidate consumers to remove reviews and other content online,” explains Michael Lai, a co-founder of SiteJabber.com, an online review site. “Consumers, not wanting to be sued and often not having the resources to fight a costly lawsuit, will often back down and remove their online reviews — even if they know they are on the right side of the law — for fear of legal retribution.”
The current bill would not halt that practice.
Questions remain about other aspects of consumer review sites. I have interviewed dozens of travelers who write online reviews, and virtually all of them reported a positive experience. Their write-ups were published promptly and are still online months and even years later.
But not all of them. Danielle Rollins, a bookkeeper from Dallas, recently complained that her one-star hotel review on a popular travel site had been “held in purgatory” while another five-star review published instantly. “The one-star review posted — eventually,” she says. Although it’s unusual, others have reported that their reviews — negative or positive — never went live.
Rollins’ experience, and those of others like her, continue to raise suspicions about the reliability of online review sites. And it leaves you wondering if travelers need to be protected from more than just vindictive hotels, restaurants and vacation-rental owners.