Gag Clauses Begone: Best Practices When Dealing with Negative Reviews

In an era of unprecedented government gridlock, a hint of bipartisanship has emerged from a surprising arena: online reviews. Recently passed by the U.S. Senate — unanimously, no less — the Consumer Review Freedom Act officially prohibits businesses from using non-disparagement clauses, aka “gag clauses,” in an effort to forestall negative online reviews. The measure currently awaits the president’s signature, which is expected.

As Sen. John Thune (R-SD), Senate sponsor of the bill and Chairman of the Senate Committee on Commerce, Science, and Transportation, said,

By ending gag clauses, this legislation supports consumer rights and the integrity of critical feedback about products and services. I appreciate the bipartisan efforts of my Senate and House colleagues to get this legislation over the finish line.

Ultimately, the proposed law shouldn’t impact many practices — most doctors have long accepted the fact that trying to stifle online reviews is a bad idea — but the news serves as a timely reminder of the do’s and don’ts of dealing with online reviews.

Don’t even considering using a gag clause

Like the state laws that have preceded it, the new rule is the latest proof that prohibiting consumers from expressing their opinions online is a violation of their right to free speech. Unless a review is truly defamatory — more on that below — even the most scathing review can be considered an opinion and is therefore protected.

Don’t threaten legal action

The books are full of cases in which companies have sued customers over negative reviews, and most have discovered that it’s a waste of time, money, or both. In 2014, an Arizona-based e-tailer was fined $306,000 for trying to charge a customer a $3,500 non-disparagement fee over a bad review, and in August, a $1 million suit brought by a pet-sitting company over a poor review was dismissed in Texas. Other companies have merely threatened­ to bring legal action — filing so-called SLAPP suits — in order to intimidate critics into silence, but such suits are illegal in 28 states and the District of Columbia.

Don’t go after the review site

Don’t bother trying to force the website that published the review — e.g., Yelp, TripAdvisor, RealSelf — to remove it. Such efforts will put you on the wrong side of the Communication Decency Act of 1996, which unequivocally states that:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In other words, although the site published the review, they’re not considered the publisher, and therefore can’t be forced to remove it. No site that values its objectivity will consent to such requests. The most likely outcome? Another waste of your time and/or money.

Do understand what determines defamation

Before even considering suing someone over a negative review, remember that you’ll have to prove the review was genuinely defamatory, which entails satisfying three key requirements: that the reviewer made a demonstrably false statement, communicated it to a third party, and damaged your business in the process. It’s a high bar to achieve, and even in the rare situations in which you could win, there are often unintended consequences. The negative publicity alone can do serious damage to your reputation.

Do encourage more reviews

You’ve probably heard the saying that the “solution to pollution is dilution,” and it’s as true for online commentary as it is for environmental crises. If you receive a negative review, it’s time to redouble your efforts in generating more good reviews. Not only will potential patients take a single, outlying attack with a grain of salt, but a slew of more recent, more positive reviews may very well push it out of sight in search results altogether.

Do use reviews to improve operations

Patient-centric providers recognize that reviews offer an excellent source of constructive criticism, especially since most complaints are about customer service issues and a doctor’s bedside manner, not the care received. And since few patients will share their feelings about long wait times, indifferent staff members, etc., with you directly, their online comments can reveal pain points you may not discover any other way.

Do try to resolve the problem, offline if necessary

Obviously, responding to online reviews is more problematic for medical practices than it is for hotels, restaurants, and other service-oriented businesses. And while you would think that every doctor worth his or her credential knows they need to protect patient privacy, it appears some still don’t get it. If you’re going to respond to a review in a social setting, remember that even if a patient reveals PHI, that doesn’t mean you can do the same. If you feel a response is required, keep it general, try to get them to continue the conversation offline, and maintain a professional, yet personal manner throughout.

Your reputation depends on it and you don’t want to do anything that could disparage it.

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.

, , , ,