When It Comes to Online Reviews, Non-disparagement Clauses Get Two Thumbs Down

It probably seemed like a good idea at the time. In an effort to forestall negative reviews, a doctor or dentist requires potential patients to sign a form limiting or prohibiting them from posting negative online comments.

The reality is that utilizing such “non-disparagement” contracts is not just a bad idea. If recent developments are any indication, it may also be illegal, which, needless to say, can inflict a lot more damage on your practice than a poor review from an unhappy patient.

Recently, in fact, California passed what is believed to be the first law in the nation prohibiting the use of such clauses and Congress is currently considering similar legislation that would do the same on a national level.

Signed into law last month, the California bill prohibits the use of contracts that include provisions requiring consumers to waive their rights to make statements regarding the companies they do business with or their products or services. Already being called the Yelp Bill, it imposes civil penalties — $2,500 for the initial violation, $5,000 for each subsequent violation and an additional penalty of $10,000 if the violation was willful, intentional or reckless.

While California is currently the only state with such a law, it’s a safe bet that other jurisdictions will probably follow suit. A case currently pending in Florida is tackling the issue (although the plaintiff is going after the hosting site, not individual reviewers) and there’s even a bill pending in Congress that would make such provisions legally unenforceable nationwide.

No country that values free speech would allow customers to be penalized for writing an honest review, said Rep. Eric Swalwell (CA-15) of his Consumer Review Freedom Act. I introduced this legislation to put a stop to this egregious behavior so people can share honest reviews without fear of litigation.

Given the partisan gridlock that has strangled the nation’s capital recently, it’s unlikely that Swalwell’s bill will become national law anytime soon. Nevertheless, based on the developments in California and Florida, the writing is on the wall. When it comes to online reviews, doctors would probably be better off giving non-disparagement provisions two thumbs down.

Doctor Takeaways

Understand the difference between disparagement and defamation

Consumers have every right to post negative reviews if they have complaints about the service they received (disparagement). They do not, however, have the right to post negative comments that are also untrue. If a review contains information that is demonstrably false, it can be considered defamatory; for negative but non-defamatory comments, non-disparagement provisions are unenforceable at best and counterproductive at worst.

Pursue resolution — within reason

Sometimes reviews contain misinformation that can be remedied with a sincere and timely response. If that appears to be the case, be personal yet professional, avoid getting into an extended debate and take appropriate care to protect patient privacy. Such efforts may convince unhappy patients to remove their negative reviews and can even prompt them to post positive updates detailing your efforts to resolve the issue. That said, the Internet is no place for an extended debate: If your efforts are rebuffed, take the conversation offline.

Counter criticism with kudos from other patients

The old line “the solution to pollution is dilution” predates the Internet but it certainly applies to the subject of online reviews. Aesthetic consumers are savvy shoppers; they know that one bad review doesn’t carry much weight if it’s among a dozen others from satisfied patients. The more you encourage satisfied patients to share their stories about their experiences with your practice, the less credence readers of those reviews are likely to give to the occasional complaint.

About Rob Lovitt

Rob Lovitt is a longtime writer and editor who believes every good business has a great story to tell. He has written for dozens of magazines and websites, including NBCnews.com, Expedia.com and the inflight magazines of Alaska, Horizon and Frontier airlines.

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