A New California Bill Would Protect Your Right to Talk Smack About Companies in Online Reviews

Writing scathing reviews is cathartic and fun … until someone gets sued.

You buy a mop online. It’s really crappy. You send it back and write some harsh, rant-y reviews about it. Seems pretty standard. But increasingly companies are trying to avoid this scenario by censoring comments or even taking legal action against the authors of negative reviews. The California legislature wants it to stop.

A bill that passed the state assembly last week would make it illegal for companies to prohibit their customers from writing bad reviews. Currently many companies bury such a clause in their terms of service for making a purchase. Whether you buy an item directly from the company or from a third party like Amazon, this agreement can still apply. And if you never personally purchased the item, you can still be subject to a service agreement, which includes speech limitations if you make a commenting account on the company’s website.

Though the bill still needs to pass the state senate and be signed by the governor, its existence is bringing more publicity to an issue that has been percolating under the radar for the past few years. AB 2365, which was introduced by assembly member John A. Pérez in February, would make an agreement “unlawful if it contains a provision requiring the consumer to waive his or her right to make any statement regarding the consumer’s experience with the business, unless the waiver was knowing, voluntary, and intelligent, as specified.”

This means that companies have the right to control customer speech on their sites, but only if they make it explicitly clear that their user agreement involves curtailing speech. If the statement is buried in a long agreement, the legislation argues that the customer’s agreement may not be “knowing” and “voluntary.”

Ars Technica points out multiple examples of people getting sued for posting negative reviews online. In one case Mediabridge, a router manufacturer, sent brutal letters to the authors of negative Amazon reviews threatening to sue them. In another instance, toy company KlearGear sued a customer for negative comments on the consumer protection and information site RipoffReport.com.

Pérez told the Los Angeles Times, “If merchants think that our 1st Amendment free speech rights need to be curtailed, they should say so upfront and in plain language.” If you want to vent about a bad purchase but you’re like, well, basically everyone, and you never read terms and condition statements, this law is for you.