A Dangerous Prognosis: Anti-Review Contracts Threaten the Health of the Online Review Industry
Anti-review contracts, like those used by Medical Justice, pose a serious threat to the consumer review website industry. Medical Justice’s approach seeks to accomplish what 47 USC 230 (sometimes called Section 230 of the Communications Decency Act) otherwise prevents—an easy way for businesses to force consumer review websites to remove reviews they don’t like.
Section 230 effectively says that review websites aren’t legally liable for their users’ reviews except in specific situations. When review websites get a complaint over a review, such as a claim that the review is defamatory, Section 230 says that the review website can choose to take it down or leave it up without being legally liable for that decision.
To get around Section 230’s immunity for review websites, Medical Justice’s form agreement attempts to require patients to prospectively assign to the doctor the copyrights in any future online reviews. This leads the doctor to attempt to claim ownership in the reviews written by his/her patients. In contrast to the Section 230 immunity, review websites (that have complied with the provisions of 17 U.S.C. §512) can be liable for user-committed copyright infringement when the website receives a copyright takedown notice and doesn’t remove the post quickly. Thus, doctors can send copyright takedown notices to review websites, forcing them to intervene or take on additional liability themselves. As a practical matter, most review websites will remove user reviews based on copyright takedown notices even when they would not have removed the reviews for other reasons.
This scheme threatens the entire review website industry. Online review sites need a mix of positive and negative reviews to earn consumers’ trust. Every time a doctor removes a negative review from your site, your site becomes less credible—and less valuable—to your readers. And if Medical Justice succeeds, other industries may adopt the same legal artifice of taking copyrights in unwritten customer reviews. In the end, if businesses can easily remove consumer reviews by sending copyright takedown notices, the entire review website industry will be in trouble.
Fortunately, some online review websites have begun to fight back. For example, Rate MDs maintains a “Wall of Shame” to publicize doctors using anti-review contracts. Other sites, including Yelp and Avvo, are refusing to honor copyright takedown notices predicated on anti-review contracts.
If you own or run a review site, we encourage you to join the fight against anti-review contracts. Point doctors and patients to this website to help them learn about the risks of the Medical Justice approach and the benefits of embracing honest online reviews. In addition, let us know if you have received takedown notices based on anti-review contracts, so we can document the problem. If you want to look into asserting your own rights against businesses using anti-review contracts, contact us, the Electronic Frontier Foundation, or Public Citizen.