Senate Mulls Anti-Review-Gag Law

42632611_s United States Capital On Wednesday, November 4, the Senate Commerce Committee probed so-called gag clauses, which critics say can intimidate and prevent people from writing critical online reviews of products and services.

The panel discussed legislation that would guard against online terms of service agreements that restrict customers from making critical reviews of the products or services they purchase. A proposed bill would give authority to states and the Federal Trade Commission to prevent these clauses, which companies can use to sue individuals who write negative reviews. In Chairman John Thune’s (R-S.D.) prepared remarks he said “These gag provisions are egregious from a consumer protection standpoint, but they’re also doing harm to our Internet ecosystem.”

Joining Chairman Thune in the bi-partisan hearing was Senator Clair McCaskill (D-MI).  “The average person is never going to understand what is being done to them,” Sen. McCaskill said. “I think many of them would run in horror.”

25785676_s gag orderCurrently, California is the only state that has laws protecting reviewers and prohibiting gag-clauses.  In 2003, a related case in a New York state court required Network Associates (known for McAfee AntiVirus that is now owned by Intel) to remove a terms of service clause that required consumers to obtain permission from the company before they could publish reviews about the software.  The FTC already takes the position that any company that prohibits purchasers from publishing reviews about the company is a violation of consumer protection laws.  So there is already momentum in support of anti-review-gag laws.  Of course a Federal legislation would clarify and solidify so as to avoid any ambiguity in the law.

ReviewInc has taken the matter and wrote the following letter to the Senator Thune:

Dear Honorable Senator Thune,

We recently read into a probe you are leading into non-disparagement clauses presented to consumers from a business in which they are conducting business with.

We applaud Federal Law that protects these consumers.  However, we believe there is balance required to this equation. Senator-Thune We have research that shows that a business can be utterly destroyed with bad reviews.  Now if they have consistently provided bad service, they probably deserve it, but if the review is from a disgruntled ex-employee or even a competitor working to deride your business, it would be utterly unfair to protect these inappropriate reviews from legal action.  There must be balance between consumers and businesses.

So what is the best way to provide business owners protection? Remove anonymity protection laws from the review sites.  This way, the business owner has a method of recourse to identify if a reviewer is a legitimate customer or if they are inappropriately hiding behind the proverbial mask of online anonymity to gain unfair advantage or cause undue harm.

We will be sharing this letter to you with all our customers and clients.

Sincerely,

ReviewInc

We encourage you to also write the senator and your own senators and representatives about this important issue.

ReviewInc can help businesses get more legitimate reviews everywhere and enhance their reputation. A large number of legitimate reviews can also help shield a business from personal attacks. For a no obligation consultation call ReviewInc at 877-9REVIEW or leave a note here and have an expert contact you.

Confessions of a Review Site Owner

top secret 40677988_sHow the review game has changed over the last 10 years

It all started in early 2006.  While only 9.5 human years ago, it’s an eternity in internet years.  The iPhone hadn’t been invented.  Mobile web browsers were a joke.  Facebook was still only available to college campuses.  Online reviews weren’t widely found outside of Amazon.

It was a great time to start SupplementReviews.com.  The idea first came to me when my college roommate gave me a bottle of NO-Xplode which he had paid $60 for – this was a ton of cash back in college.  He took it a few times and just couldn’t stomach it.  “Too bad he didn’t know before dishing out the $60,” I thought to myself.  And that’s when it clicked.

In 2006, major online supplement retailers such as Bodybuilding.com and GNC.com didn’t have any customer reviews.  The only info they provided was what the brand wrote – and brands will basically write anything to get you to buy the product.

I used online tutorials to learn some basic web development skills, and within a month, my website was ready to launch.  Submitting a review only involved writing some text in a box, picking a rating between 0 and 10 and clicking “submit”.  We didn’t ask your name, age, email, gender, experience or record any other info.  It was completely anonymous, had zero accountability and ran on the honor system.  And it worked.

The site was an instant success.  We started getting dozens of reviews each day.  Every review submitted was published and counted equally.  The product rating was simply the raw data average.  The site was rough, but I was continually making small tweaks and improvements.

Until about 2009, we were still small enough to fly under the radar.  Brands didn’t have much incentive to fudge their ratings because of our limited presence.  But as our reach and power of influence grew, so did the stakes for being number one on our site.

business hacker 43768364_sFirst Line of Defense: Accountability Through Registration and Email Verification

Between 2009 and 2010, we phased in a user system and eventually required all users to sign up before they could submit a review.  This drastically reduced the quantity of reviews submitted to the site, but helped weed out a lot of the obviously biased ones.  Also, we could now take a look at their email address.  Many times, when a review looked suspicious, we could see that the email was “rep@brand.com”.  This was an easy way for us to tell if someone was stuffing the ballot.

With a registration system, we could also better track the IP addresses that each user logged in with.  This enabled us to see connections between suspicious reviews and determine whether or not it was one person writing all the reviews.

Despite this, we still noticed slanted reviews coming in.  They’d usually arrive in clusters; 4 or 5 reviews in a row, all raving about how the product is the best supplement they’ve ever used.  Our regular community members would start flagging these obviously biased reviews and get personally offended that some rep would come in and spam their product like that.

We took offense to it as well, so we decided to fight back.

Fighting Fake Reviews with Public Shaming

In 2011, we started the SupplementReviews.com Hall of Shame.  This was a dedicated forum where we would publicly announce companies who we caught stuffing the ballot and creating fake reviews.

Since I have database administrator privileges, I could see a lot more information on each user than they were even aware of.  When our community members reported suspicious reviews, we could use our detective skills to look into the data and see if we could draw any conclusions.

Here’s a few ways we could tell if a brand rep was posting fake reviews:

  • Search their email on social media.  Every user had to verify an email address, which nobody except for me could see.  You’d be surprised at how much info you can gather on someone just by stalking them on social media channels.
  • Google their username to see if they were signed up at any other forums.  People often recycle the same usernames, so it’s easy to see their posting history on other fitness forums, reddit, etc.
  • Track their IP and see if it matches other reviewers of the same product, or if the location is the same city as their business headquarters.

Every time we publicly shamed someone, we’d share the juicy details on our discovery.  Our community was excited we were proactively combating the fakers.  We caught nearly 100 different companies red-handed using this method.

Although we made it very clear to all new members that you could end up in the Hall of Shame if you are posting reviews as a rep, it didn’t seem to phase them.  The biased reviews kept coming in.

protein 38690772_sIncentivized Reviews: Not “Fake” but Still Biased in the Supplement Industry

In 2011, as Facebook was in a period of explosive growth, we noticed a disturbing trend of a fake-looking reviews popping up on our site.  Our usual detective work wasn’t turning up any dirt because these weren’t the brand owners or reps writing the reviews.  In fact, it was actual customers writing reviews on products they had used, so our Hall of Shame was futile against these attacks.

After a few months of scratching our heads and wondering what to do, it finally clicked.  Brands were offering their loyal followers an incentive to sign up to our site and write a review.  Sometimes it was a discount code, sometimes it was a free t-shirt, shaker cup, samples, or an entry to win a bigger prize.

Even though these reviews were from real customers, they were completely biased and we felt they didn’t belong on our site.  It was very rare to see an incentivized review that wasn’t a 9 or 10 out of 10.

Disclaimer:  Incentivized reviews don’t work in the supplement industry, but they may be viable in other industries.

There is a TON of brand loyalty and marketing hype in the supplement industry.  Supplement companies often sign professional athletes or bodybuilders as a marketing tool to tap into their existing fan-base.  We see a lot of sensationalism because products are based on confusing pseudo-science and appeal to one’s emotional desire to look better.

The average Joe isn’t always qualified to review products since most of the time the results are so subtle that they have no idea if it’s actually working or not, and end up simply regurgitating the marketing on the label.  We even tell brands NOT to send their fans to our site for reviews, and instead offer an avenue for them to send their products to our experienced reviewers – a solution that keeps the playing field level.

This isn’t the case in most other industries.  For example, if someone paints your house, the laymen is well equipped to comment on their promptness, responsiveness, and quality of the work.  You’ll rarely see a painting company hire professional bodybuilders or athletes to generate a die-hard loyal following.  Furthermore, it’s impossible for a painter to send free house paintings out to experienced reviewers.

Our policy to disallow incentivized supplement reviews was a decision made based only on the current environment of our industry, and doesn’t necessarily condemn incentivized reviews in other industries.

Sadly, as we had been learning, just asking nicely isn’t going to stop anyone from trying to cheat the system.  We were determined to find a clever, data-driven solution.

sports drink 20151508_sReviewer Authenticity Score: Our First Step Towards a Data-Driven Solution

In 2012, we had major drama with one brand.  They created hundreds of accounts, all with different IP addresses, emails, usernames, and posted quality (positive) reviews on their products.  The community was up in arms seeing the 10/10 reviews coming in every single day, knowing they must be fake, and my detective work was coming up with nothing.  Did they actually beat us?

Up late one night, while frantically searching the data to see if there was any trail of evidence strong enough to delete and ban all those fake reviewers, I had another “ah-ha” moment.  What if we write an algorithm to automatically look at all the data we have and generate an “Authenticity” score for each product?

A few weeks later, every product had been assigned a “Reviewer Authenticity Sore” – a number from 0% to 100% which represented how “natural” the reviews for that product appeared.  For example, if all the reviews were written on the same day by one-hitter-quitter users (a user that signs up, posts one review and never comes back), that product would probably have a 0% Reviewer Authenticity and get a big “Mistrusted” flag on their product.

I was pretty smug about this.  It seemed to be working pretty well, but there were a few fatal flaws.  First, it wasn’t 100% accurate.  There were false positives and brand reps were not happy about that.  Second, and most fatally, it was not very well understood by the laymen.  It was becoming obvious that this advanced concept was going over the heads of users who just want to instantly know “is this product good?”.

We ended up rolling it back in 2014 to make way for something a little more effective.

Not All Reviews are Created Equal: Member Trust and Weighted Averages

By our 8th birthday, our community had built up a core group of trusted, established members.  They are known for having a critical eye for supplements, plenty of experience and ability to write detailed, thorough reviews.  How was it fair that a review from one of the most trusted and established members counts the exact same as someone who signed up yesterday, posted one low-quality review and never came back again?

It wasn’t fair, and that’s why we decided to create Member Trust and Weighted Averages.  Here’s how it works: every new user starts with 0% Trust and has to work their way up to 100% by submitting quality reviews, participating in our community and sticking around a for long period of time.  Many users never achieve 100% Trust, and their reviews aren’t weighted as heavily.

Our calculation for the average product rating changed as well.  While the math may be difficult for the layman to understand, it still produces one single number that everyone can relate to.  Our formula takes into account Member Trust, review age, and quantity of reviews before spitting out an average rating for each product.

No longer can companies spam their way to the top of our list by sending a bunch of their followers to post 10/10 reviews on our site.  This solution was completely effective at keeping our data and average ratings free from brand influence, but we still had the problem of suspicious reviews showing up (even though they didn’t actually count).

Nail in the coffin with TROOPs and Approval Center

It was early 2015, and we were still noticing brand reps sending their loyal fan army to flood our site with low-quality, one-hitter-quitter reviews on their products.  These reviews didn’t actually affect their ratings, but they were still spamming away – either they didn’t understand or they just didn’t care.

Our community was still upset about these types of reviews invading our site, and we decided that we’d had enough.  On our 9th anniversary, we created the Approval Center.  This meant that all new members had to get their reviews manually approved by at least 3 of our top members before they’d be published on our site.

The quality standard for reviews skyrocketed, and anyone trying to push a low-quality review through was rejected and sent back for edits.  Low-quality reviews were a thing of the past.  Although the problem was solved, brand reps were still unhappy that it was now impossible to get reviews on our site.

In response to their concerns, we set up the Trusted Reviewer Open Opportunity Program, or SR TROOPs for short.  This gives every brand rep the chance to get reviews from trusted members on our site.  All they have to do is send out some products and they’ll get their unbiased reviews.  Their products get real reviews, our reviewer gets a free product, and nobody is upset about fake reviews getting posted on our site.

Finally, the ratings on our site are based on the merits of the actual product, rather than the size of the brand’s following.

What’s next?

Over the last 10 years, the only way we’ve been able to combat fake, low-quality and biased reviews is to spend a lot of effort vetting each new reviewer.  The anonymous free-for-all strategy has long been extinct and we’ve found success in encouraging quality over quantity.

Our plans for the future include getting more intimate and exclusive with our core group of trusted reviewers, and carefully growing this team so that the vast majority of reviews on our site are written by the regulars, not the randoms that show up to post one review and then disappear into cyberspace.

SupplementReviewsLogoTommyNoonanTommy Noonan is the founder of SupplementReviews.com, an unbiased review site dedicated to bringing honesty into an industry full of scams, spin and crazy marketing hype.

 

 

Anonymous Reviewers Unmasked

34959063_s - unmaskedWell prior to the advent of the internet, federal and state courts recognized that various forms of expressive activity constitute constitutionally protected speech.  Traditionally, protected expressive activities have included opinions that are broadcast or published anonymously or pseudonymously.  By the same token, throughout the United States, the courts have recognized that those harmed by slander, libel, defamatory conduct, misappropriation of trade secrets, copyright infringement, and other forms of wrongful publication may pursue various damage claims.  Among potential remedies, injured parties may also seek injunctive relief to enjoin unlawful conduct.

Without question, securing a remedy against one who has wrongfully engaged in wrongful publication under the cloak of anonymity presents its challenges.  Indeed, the courts struggle to balance competing interests in preserving constitutionally protected speech of anonymous publishers and permitting injured parties to pursue vile tort-mongers.

While the courts in various jurisdictions have struck this balance in different ways, there is a general consensus within the judiciary that an injured party must make a showing of a legally and factually tenable claim before the court will compel a publisher to reveal the identity of an anonymous or pseudonymous Internet speaker.  (See e.g.  Krinsky v. Doe 6, (2008) 159 Cal.App.4th 1154 [In a dispute over pseudonymous Internet speech, where there is evidence of a libelous statement made and discovery of the defendant’s identity is necessary to pursue a claim, the court may refuse to quash a third-party subpoena. When there is a factual and legal basis for believing libel may have occurred, the writer’s anonymous message will not be protected by the First Amendment]; See also, Bently Reserve LP v. Papaliolios, (2013) 218 Cal.App. 4th 418 [the California court allowed a complaint that arose from a negative pseudonymously authored review, posted to an Internet website by a tenant of an apartment building.])

Thus, for those who choose to offer anonymous opinions that have a defamatory component, there is no guaranty that their identities will be constitutionally protected from disclosure and that they will not be exposed to possible suit.

Given the uncertainty of litigation, more than one avenue of attack should be contemplated by those concerned that their business reputation may have been impaired or otherwise compromised by comments presented in social media venues. Use of reputation management consultants and development of social media to attract a larger, more meaningful crowd of opinions and reviews concerning ones business, are well worth consideration in a multipronged approach to combat slander, defamation and trade libel.  It certainly pays to seek advise of counsel familiar with business torts of this nature, as circumstances vary widely, and advice will depend on the particulars of each specific matter.

By Mark HerskovitzMark Herskovitz

Mark Herskovitz is a senior attorney with the law firm of Manning & Kass, Ellrod, Ramirez, Trester LLP, with office locations in Los Angeles, San Francisco, Orange County, and San Diego, Scottsdale and New York.  Firm areas of practice areas include a wide area of civil practice and appeals, inclusive of business litigation. Note: This article may be construed as an advertisement pursuant to Cal. Rules of Professional Conduct, Rule 1-400.

 

Denial of Reputation Attack

Denial-of-Reputation-AttackCan a group of people deny a legitimate business of their online reputation? In the parlance of cyber-security, a Denial of Service Attack is when a hacker overwhelms a website with so much illegitimate web traffic, that legitimate traffic can’t get access to the site. The same idea can be used in social media to attack or even drown out public opinion. But now, review sites are being used to target individuals and their business essentially denying them a legitimate online reputation.

On July 28, news media reported a story about a dentist, Dr. Walter Palmer, of River Bluff Dental, who was also an avid big-game hunter. On one Dr. Palmer’s hunting jaunt in Zimbabwe, he shot and killed a beloved lion. Cecil, the affectionate name given to the lion, was living in Zimbabwe’s Hwange National Park where it had protected status and was collared as part of a long-term study. Cecil was a favorite among tourists and a point of pride for Zimbabwe. Palmer had paid more than $50,000 for this hunting trip and hired two guides who apparently misled him to believe that Cecil was fair game (and could be legally shot). While the guides have since been arrested, Dr. Palmer’s legal fate was yet to be determined. Legal or not, that didn’t stop the general public from avenging Cecil’s killing.

Thousands of reviewers have thoroughly destroyed Dr. Walter Palmer’s and his dental practice. A day after the story broke, his Yelp and Google+ pages logged well over 5,000 reviews in a 24 hour period. All the reviews were one-star reviews. A handful gave 5-star with very negative comments. Any legitimate review of River Bluff Dental was basically drowned out by what we call a Denial of Reputation Attack. Is this a legitimate use of review sites?

ReviewInc surveyed 1,000 U.S. Consumers on the legitimacy of writing reviews. Respondents were given multiple answer choices on the question of “You can legitimately write an online review about a business (on sites such as Yelp and Google+).” The possible answers included type of customer, employed by the business, just heard allegations or want to destroy their name. Not surprisingly, most of respondents recognized that current and former customers should be recognized as legitimate reviews. However, over 8% of respondents believed that current and former employees should legitimately write reviews even if they are not customers of that business. Slightly more than 5% felt that they could write reviews based on hearsay, while 4.5% felt they could write reviews just to destroy someone’s business.

 

Survey: When Can You Legitimately Write a ReviewReviewInc applauds Yelp’s stance on this matter. Yelp said in a statement that “Media-fueled reviews typically violate our content guidelines. One of these deals with relevance. For example, reviews aren’t the place for rants about a business’s employment practices, political ideologies, extraordinary circumstances, or other matters that don’t address the core of the consumer experience.”

The company added that Yelp reviews are required to describe a firsthand consumer experience, not what someone read in the news. “Our user support team ultimately removes reviews that violate these guidelines.” Indeed, a quick glance of some of the 6449 reviews on the one-star rated River Bluff Dental’s page, are from out of state.WalterJPalmerDDS---Yelp-Page-on-2015-07-29

As of this writing, Google+ reviews for River Bluff Dental have yet to be removed. As you can see in the picture, they are all mostly personal attacks on Dr. Palmer.

July 30, 2015, 7:25PM PDT:  It appears that Google+ has also filtered most of the reviews, however there are still around 200 reviews – most of which driven by the media regarding Cecil the lion.

WalterJPalmerDDS---Google+-Page-on-2015-07-29

ReviewInc can help businesses get more legitimate reviews everywhere and enhance their reputation. A large number of legitimate reviews can also help shield a business from personal attacks. For a no obligation consultation call ReviewInc at 877-9REVIEW or leave a note here and have an expert contact you.

Anonymous Reviews – Good or Bad Idea?

Anonymous Reviewer

Are Anonymous Reviews a Good or Bad idea?  ReviewInc put this question to a test. In July 2015, we asked 3,001 U.S. Consumers about writing a business review anonymously. We gave each of them the choice of multiple answers. In general, 63.1% of the consumers provided reasons in support of anonymous reviews where as 44.6% provided reasons that they would be against anonymous reviews. Reasons in support of anonymous reviews included:

  • Protected Free SpeechScales of Justice - Anonymous Reviews
  • Protects the reviews from retaliation
  • Makes it more likely that a review would be written.

Reasons against anonymous reviews included:

  • Undermining the Integrity of the Review
  • That it is wrong to hide one’s identity (when writing a review)
  • That is should be against the law.

Protection of Free Speech was cited as the most popular response (at 35.6% of all responses), still, the second most popular response indicated that consumers recognized that anonymous reviews undermine the trust (or integrity) of the review.
Anonymous Reviews

There were some significant and interesting differences in responses when comparing demographics such as age group, gender and income level. It was interesting to note that 43% of  Millennials or Gen-Y (18-34 year olds) had a much stronger opinion about anonymous reviews being protected free speech when compared to older groups at 32%. The Millennials didn’t seem to feel that the integrity of the reviews would be as affected, but were nearly twice the opinion that anonymous reviews would protect them from retaliation which would also make them much more likely to write a review (if it was anonymous). Conversely, the older the age group, the more they felt that it was wrong to hide one’s identity (when writing a business review) and maybe should even be against the law.Anonymous Reviews by Age Group

In some cases, responses by gender were quite significant.  While both genders had a near equal opinion that anonymous reviews were protected free speech, men felt more strongly that anonymous reviews undermined the trust (or integrity) of the review. However women, felt more strongly that the ability to write an anonymous review would make them more likely to write a review.

Anonymous Reviews by Gender

When examining income levels associated with opinions about anonymous reviews there was a strange anomaly. On several answers, those with high earnings and those with little to no earnings seemed to respond similarly to those with mid-range incomes. Why?  Presumably, they had more vulnerabilities but for different reasons. Those with higher income were vulnerable financially because they are a larger financial target to something like a lawsuit and have more to lose. Those with little or no income were, well, are just very vulnerable to attack with no meaningful type of protection.

Anonymous Reviews by Income

While internet users can disguise or hide their identity, we agree that reviews associated with an identifiable customer, client or patient carry far more weight and value than do anonymous reviews. Reviews on sites like Google+, Yelp or Facebook have policies against anonymous reviews (as do many other review sites). However, even with a large number of anonymous unique reviews about a business that include detailed text descriptions (not just a rating value), consumers do get a clear picture of a business, establishment, product or service.

ReviewInc can help businesses get more reviews everywhere and enhance their reputation. For a no obligation consultation call ReviewInc at 877-9REVIEW or leave a note here and have an expert contact you.