Over the past year, many people either heard a news story or spoke to a friend or family member who was charged a fee or even banned from a gym, hotel, or other service location after leaving a negative review about the business, service or merchandise online. Often the reason the charge or banning occurred is because of language in the contract between the business and the friend/family member that prohibits such individual from making negative statements about the business or posting a negative review online. This language allows the business to penalize the individual if they violate the agreement and post a negative review.
Prior to January 1, 2018, this behavior was legal in Illinois. However, this all changed with the passage of Senate Bill 1898, now Public Act 100-0240, which protects a consumer’s right to leave a negative review online by prohibiting businesses from using (or attempting to use) non-disparagement clauses to restrict a consumer’s right to leave a negative review.
The language of the Act states:
- A contract or a proposed contract for the sale or lease of consumer merchandise or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or the employees or agents of the seller or lessor or concerning the merchandise or services.
- It is an unlawful practice to threaten or to seek to enforce a provision made unlawful under this Section or to otherwise penalize a consumer for making any statement protected under this Section.
- Any waiver of the provisions of this Section is contrary to public policy and is void and unenforceable.
- This Section may not be construed to prohibit or limit a person or business that hosts online consumer reviews or comments from removing a statement that is otherwise lawful to remove.
The language in the Act (above) is a bit dense and is best looked at section by section. Section (a) of the Act indicates that a business cannot include what is known as a non-disparagement clause in the contract it uses with consumers. A non-disparagement clause prohibits an individual from making negative statements about a business or from taking any action which results in the reputation of a business being negatively affected. One common example of this is when a business includes a clause within it’s contract that states a consumer cannot leave a negative review online (via the company’s website or a third-party side; such as Yelp) or that a consumer cannot say anything negative about their experience to any other person.
Section (b) prohibits a business from trying to enforce or threatening to enforce any non-disparagement clauses it may have in its previous consumer contracts or from otherwise penalizing a consumer from making a negative statement. This means that a business cannot penalize a consumer, or even threaten to penalize a consumer, for leaving a negative review despite the fact that a consumer previously agreed not to do so under the business’ previous contract. Any such clauses in a business’ prior contracts are no longer valid and a business could face legal damages for trying to enforce, or threatening to enforce, such clauses against its consumers.
Section (c) states that this Act is non-waivable, which means that a consumer and business cannot voluntarily agree to by-pass this Act. A business and a consumer cannot agree to behave as if this Act does not exist and voluntarily enter into an agreement which includes a non-disparagement clause or restricts a consumer’s right to make statements (negative or positive) regarding the merchandise received or services performed. If a consumer and a business attempt to waive the Act and agree to enter into an agreement which contains such language and then the business brings the agreement to the court system for enforcement, the courts will determine that such portion of the agreement is unenforceable.
The last section of this Act, Section (d), indicates that this Act does not trump any other existing act and that a person or business retains the right to remove any online reviews or portions of such reviews that they are otherwise legally allowed to remove.
Should you have any questions about the Public Act 100-0240 or non-circumvent clauses, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800.
Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.
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