Contemplating Fairness and Feedback

The Consumer Review Fairness Act of 2016¹ is a law that recognizes the value of public feedback on the quality of services. Don’t rely on me for legal advice, but as I understand it, this law makes certain gag clauses in contracts void. Medical practices or other businesses can no longer put into standard contracts clauses that restrict negative reviews. More than making those clauses void, the Act actively prohibits the clauses and provides enforcement provisions for violations. 

The power of Congress to regulate these contracts may derive from its authority to control interstate commerce under the Commerce Clause of the US Constitution. Given how much my wife and I rely on consumer ratings for purchases from Amazon, eBay, and Airbnb (not to mention she’s on Yelp right now while I’m writing this, trying to find a restaurant for us to go to), there’s little doubt that consumer ratings have considerable and ever-increasing impact on interstate commerce. 

The Act had bipartisan sponsorship and cleared both the House and Senate with strong bipartisan support (at least as near as I can tell, for they didn’t feel the need for roll call votes). In an era of intense partisan divide, one thing the good folks in Congress could agree on was that facilitating the public’s ability to rate services they receive is a good thing. 

News reports describing the origins and passage of the Act cited examples of various businesses trying to stifle customers from making negative reviews.^2-4 Medical Justice, a company that helped medical practices avoid and defend lawsuits, used to provide gag contracts for doctors to use in their practices; they also offered an approach to control negative ratings based on the transferring the patient’s copyright to the ratings to the physician so that the physician would have standing to remove ratings, another tactic the Consumer Review Fairness Act prohibits.⁵ Medical Justice not only no longer offers their clients such contracts; now Medical Justice offers doctors a service to promote and encourage online ratings.

All this transparency from the Consumer Review Fairness Act is great. But is it fair? Unlike eBay, Airbnb, and Uber where buyers and sellers are both rated, doctors don’t get to rate patients; doctors’ ability to even respond to a negative review is quite limited given the asymmetry of confidentiality inherent in doctor-patient relationships. The world of consumer ratings may not be entirely fair. But that’s okay. Transparency will help doctors by letting the public see what a great job we regularly do. And often, the few negative reviews we get will help us the most, if we take the opportunity to learn from them. 

Steven R. Feldman, MD, PhD

Chief Medical Editor

Dr Feldman is with the Center for Dermatology Research and the Departments of Dermatology, Pathology, and Public Health Sciences at Wake Forest University School of Medicine in Winston-Salem, NC. 

References

1. Consumer Review Freedom Act of 2015, 

S 2044, 114th Congress 1st Sess (2015). https://www.govtrack.us/congress/bills/114/s2044/text. Accessed September 20, 2017. 

2. Davis W. Obama signs law protecting consumers’ right to post views. The Online Daily Examiner. December 15, 2016. https://www.mediapost.com/publications/article/291226/obama-signs-law-protecting-consumers-right-to-pos.html. 

Accessed September 20, 2017.

3. Bonelli S. What does the Consumer Review Fairness Act mean for consumers and online reviews? December 12, 2016. Third Door Media Inc. https://searchengineland.com/consumer-review-fairness-act-mean-consumers-online-reviews-264920. 

Accessed September 20, 2017.

4. Tarantola A. President Obama signs Consumer Review Fairness Act into law. December 15, 2016. Engadget. https://www.engadget.com/2016/12/15/president-obama-signs-the-consumer-review-fairness-act-into-law/. 

Accessed September 20, 2017.

5.Congress takes action. Consumer Review Freedom Act. January 5, 2017. eMerit Blog. https://emerit.biz/n1-congress-takes-action/#comment-25558. Accessed September 20, 2017.

The Consumer Review Fairness Act of 2016¹ is a law that recognizes the value of public feedback on the quality of services. Don’t rely on me for legal advice, but as I understand it, this law makes certain gag clauses in contracts void. Medical practices or other businesses can no longer put into standard contracts clauses that restrict negative reviews. More than making those clauses void, the Act actively prohibits the clauses and provides enforcement provisions for violations. 

The power of Congress to regulate these contracts may derive from its authority to control interstate commerce under the Commerce Clause of the US Constitution. Given how much my wife and I rely on consumer ratings for purchases from Amazon, eBay, and Airbnb (not to mention she’s on Yelp right now while I’m writing this, trying to find a restaurant for us to go to), there’s little doubt that consumer ratings have considerable and ever-increasing impact on interstate commerce. 

The Act had bipartisan sponsorship and cleared both the House and Senate with strong bipartisan support (at least as near as I can tell, for they didn’t feel the need for roll call votes). In an era of intense partisan divide, one thing the good folks in Congress could agree on was that facilitating the public’s ability to rate services they receive is a good thing. 

News reports describing the origins and passage of the Act cited examples of various businesses trying to stifle customers from making negative reviews.^2-4 Medical Justice, a company that helped medical practices avoid and defend lawsuits, used to provide gag contracts for doctors to use in their practices; they also offered an approach to control negative ratings based on the transferring the patient’s copyright to the ratings to the physician so that the physician would have standing to remove ratings, another tactic the Consumer Review Fairness Act prohibits.⁵ Medical Justice not only no longer offers their clients such contracts; now Medical Justice offers doctors a service to promote and encourage online ratings.

All this transparency from the Consumer Review Fairness Act is great. But is it fair? Unlike eBay, Airbnb, and Uber where buyers and sellers are both rated, doctors don’t get to rate patients; doctors’ ability to even respond to a negative review is quite limited given the asymmetry of confidentiality inherent in doctor-patient relationships. The world of consumer ratings may not be entirely fair. But that’s okay. Transparency will help doctors by letting the public see what a great job we regularly do. And often, the few negative reviews we get will help us the most, if we take the opportunity to learn from them. 

Steven R. Feldman, MD, PhD

Chief Medical Editor

Dr Feldman is with the Center for Dermatology Research and the Departments of Dermatology, Pathology, and Public Health Sciences at Wake Forest University School of Medicine in Winston-Salem, NC. 

References

1. Consumer Review Freedom Act of 2015, 

S 2044, 114th Congress 1st Sess (2015). https://www.govtrack.us/congress/bills/114/s2044/text. Accessed September 20, 2017. 

2. Davis W. Obama signs law protecting consumers’ right to post views. The Online Daily Examiner. December 15, 2016. https://www.mediapost.com/publications/article/291226/obama-signs-law-protecting-consumers-right-to-pos.html. 

Accessed September 20, 2017.

3. Bonelli S. What does the Consumer Review Fairness Act mean for consumers and online reviews? December 12, 2016. Third Door Media Inc. https://searchengineland.com/consumer-review-fairness-act-mean-consumers-online-reviews-264920. 

Accessed September 20, 2017.

4. Tarantola A. President Obama signs Consumer Review Fairness Act into law. December 15, 2016. Engadget. https://www.engadget.com/2016/12/15/president-obama-signs-the-consumer-review-fairness-act-into-law/. 

Accessed September 20, 2017.

5.Congress takes action. Consumer Review Freedom Act. January 5, 2017. eMerit Blog. https://emerit.biz/n1-congress-takes-action/#comment-25558. Accessed September 20, 2017.