Publication Date



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 become 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.