10-14-2015 3-48-13 PMThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we highlight five key social media law issues to address with your corporate clients; we discuss when social media posts are discoverable in litigation; we identify six important considerations in drafting legal terms for mobile apps; we take a look at the clash between bankruptcy law and privacy law in RadioShack’s Chapter 11 proceedings; we examine a recent federal district court decision finding “browsewrap” terms of use to be of benefit to a website operator even if not a binding contract; we outline best practices for employers’ use of social media to screen and interact with employees and conduct workplace investigations; we explore a Washington state court’s refusal to unmask an anonymous online reviewer; and we discuss Facebook’s recent update of its “Notes” feature.

All this—plus an infographic illustrating the growing popularity of video on social media.

Read our newsletter.

 

Bad reviews. On September 30th, the soon-to-be-launched app Peeple was described by the app’s co-founder, Julia Cordray, as a “Yelp for people,” that is, a people-rating platform that would allow users to assign number ratings to anyone—anyone at all, fellow Peeple user or not—as long as the critic was 21, had an established Facebook account, used his real name, and could provide his subject’s cell phone number. The Washington Post reported that “you can’t opt out—once someone puts your name in the Peeple system, it’s there unless you violate the site’s terms of service. And you can’t delete bad or biased reviews—that would defeat the whole purpose.” But by October 4th Cordray had changed her tune entirely, describing Peeple as a “positive only app” that will not allow a review to appear until it has been explicitly approved by the subject of the review. An outraged public can take credit for Cordray’s about-face. In the comments section of the Washington Post piece in which Cordray described Peeple’s original iteration, many readers expressed fear and disgust at the prospect of a site that would doubtless facilitate cyberbullying and, for some, encourage crippling self-consciousness. In other words, the very online lynch mob whose power Cordray hoped to profit from wound up turning on her. The irony of that did not go unnoticed. Cordray’s new version of Peeple, which she promises will be part of a “positive revolution” designed to fight back against the kind of online negativity she faced after the Washington Post piece was published, is expected to launch before the end of the year.

Picture perfect. Any social media marketing plan necessarily includes these two goals: Identify your target audience, and attract and engage that audience with compelling content. We’ve written about how neural networks are facilitating marketers’ use of photographs to help find target audiences by automatically identifying the products being used and the activities being undertaken by the subjects of photos posted to social media. Now, companies like EyeEm Mobile GmbH and Neon Labs Inc. are rolling out software to help marketers choose photographs that will engage those audiences with attractive content. The technology that these companies have developed automatically identifies images with qualities that potential customers are likely to find compelling. The software, according to the Wall Street Journal, identifies “patterns common to images selected by professional photographers” or “characteristics shown to trigger brain activity in neuroscience experiments.” The human eye has proven to be more attracted to photographs in which the subject appears to be speaking in mid-sentence, for example, or in which the subject appears to be attracted to something happening offscreen. Since EyeEm debuted two months ago, the startup’s customers have enjoyed a 30% increase in interaction with their online content. The software works for online video posts, too, helping companies to select the most compelling frames for posting. Neon Labs reports that its partners and customers “made 16% to 40% more revenue on their videos due to increased clicks.”

The powers that tweet. Twitter has a handbook explaining its platform to people running for elected office and it runs just under 140 characters pages. That’s right, the social media company notorious for its draconian limit on post lengths took 136 pages to “make sure that people feel empowered with the full story of what Twitter is,” according to NPR’s interview with Bridget Coyne, one of the people responsible for the manual’s compilation. Coyne told NPR that the creators of the “wildly popular” guide went into painstaking detail explaining how the platform works because they “didn’t want to make assumptions.” Still, it’s difficult to comprehend how the manual’s target audience—whom Coyne says includes congresspersons, chiefs of staff and Congressional interns—aren’t likely to be insulted by a manual that dedicates whole pages to topics such as, for example, “The Anatomy of a Tweet,” complete with numbered illustrations pointing out which part of a Twitter post constitutes the “profile photo” and which part is defined as the “tweet text.” Nevertheless, Coyne insists that Twitter continues to get positive feedback about the manual, and says she hopes to eventually publish a second version of it explaining new Twitter features like Periscope. Does all this mean an end to political scandals due to Twitter misuse? Count us skeptical.

JD_iStock_000019152244_LargeVloggers have become the reality stars of our times. For an increasing number of social media users, what was once a hobby is now a lucrative career. You may be surprised to learn that Felix Kjellberg (aka “PewDiePie”), a 25-year-old Swedish comedian and the world’s most popular YouTube star, is reported to have earned $8.5 million in 2014.

The UK has its own vlogger superstars in the form of Zoella and Alfie Deyes. Together, this power couple of social media has amassed 12 million YouTube subscribers, 6.8 million Instagram followers and almost 6 million Twitter followers. Zoe Suggs (aka “Zoella”), 25, started vlogging in 2009 and has since become a brand in fashion and beauty marketing, publishing a novel and creating a line of products. Alfie, 21, started his Pointless vlog when he was 15 and has since published a series of books. It was even announced earlier this year that tourists will soon be able to see waxworks of Zoella and Alfie at London’s Madame Tussauds. But Zoella and Alfie are not alone; there is now a whole generation of vloggers rivalling film and sports stars in the popularity ranks. Indeed, we now even have a host of social media talent agencies formed to help propel vloggers to superstardom.

Vloggers are particularly popular with young people who enjoy the more intimate connection they can have with these approachable idols. Therefore, brands who want to target a young demographic are increasingly keen to work with vloggers. This collaboration typically involves brands paying vloggers to feature in “advertorial vlogs,” i.e., videos created in the usual style of the vlogger, but with the content controlled by the brand.

Now, of course, there is nothing inherently wrong with there being a commercial relationship between a brand and a vlogger from a legal perspective. However, particularly where you have the influence of celebrity, plus an impressionable audience, vloggers and brands need to be very careful that they don’t fall foul of consumer protection rules that are in place to protect consumers from unfair advertising practices. In August 2015, the UK advertising regulator issued new guidance to help vloggers and brands be responsible and stay on the right side of the law. In this blog post, we will identify the key issues raised by the guidance. We will also provide an overview of some of the other key legal issues that brands need to be aware of when using social media for marketing and advertising in the UK.

Vlogs

The Consumer Protection from Unfair Trading Regulations 2008 (“CPRs”) prohibit certain unfair commercial practices. These include using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear (advertorial).

The Committee of Advertising Practice Code (the “CAP Code”) acts as the rule book for non-broadcast advertisements in the UK and requires that advertising must be legal, decent, honest and truthful. The CAP Code was extended to cover social media in 2011. The Cap Code is enforced by the Advertising Standards Authority (“ASA”), the UK regulator responsible for advertising content in the UK. The ASA has the power to remove or have amended any ads that breach the CAP Code.

Rule 2.1 of the CAP Code states that marketing communications must be obviously identifiable as such. Rule 2.4 states that marketers and publishers must make clear that advertorials are marketing communications, e.g., by labelling them “advertisement feature.” These rules apply to marketing communications on vlogs in the same way as they would to marketing communications that appear on blogs or other online sites. But as the CAP Executive noted last year, a number of marketers have “fallen foul of the ASA by blurring the line, intentionally or not, between independent editorial content written about a product and advertising copy.”

In November 2014, the ASA’s ruling against Mondelez provided a clear example of a brand failing to comply with the CAP Code. Mondelez had engaged five celebrity vloggers to promote its Oreo cookies by participating in a race to lick cream off a cookie as quickly as possible. The channels featuring the vlogs typically contained non-promotional content, and the vlogs failed to clearly indicate the commercial relationship between Mondelez and the vloggers. The reference to “Thanks to Oreo for making this video possible” might indicate that Oreo had been involved in the process, but it did not make clear that the advertiser had paid for and had editorial control over the videos. As a result, the advertorials were banned.

In another high-profile case, in May 2015, a YouTube video providing makeup tutorials featuring the popular vlogger Ruth Crilly, who has 300,000 subscribers on YouTube, was banned by the ASA for failing to clearly identify itself as marketing material. The video appeared on the “Beauty Recommended” YouTube channel, which is operated by Procter & Gamble, with the intention of marketing its Max Factor range of products. The ASA stated that the channel page provided “no indication” that it was a Max Factor marketing tool, and emphasized that “it wasn’t clear until a viewer had selected and opened the video that text, embedded in the video, referred to Procter & Gamble….We consider that viewers should have been aware of the commercial nature of the content prior to engagement.”

Guidance

In August 2015, the CAP Code Executive published guidance to help vloggers and brands better understand their obligations under the advertising rules. While the guidance is not binding, it’s a helpful statement of the rules as they apply to vlogs.

Advertorial. Where a brand collaborates with a vlogger on a video that is produced by the brand and published on the brand’s website or social media page, this is very likely to be a marketing communication—but it wouldn’t be an advertorial. However, where a vlog is made in the usual style of the vlogger, but the content of the vlog is controlled by the brand and the vlogger has been paid (not necessarily with money) for the vlog, this would be an advertorial. Because the extent of the brand involvement may not be obvious to the viewer, this needs to be made explicit upfront so that viewers are aware that the video is an ad before engaging. Labels such as “ad,” “ad feature,” “advertorial,” or similar are likely to be acceptable, whereas labels such as “sponsored by,” “supported by” and “thanks to X for making this possible” should be avoided, as these would not make it sufficiently clear that the brand had control over the content of the vlog. Viewers should be aware that they are selecting an ad to view before they watch it so that they can make an informed choice. Finding out that something is an ad after having selected it, at the end of a video or halfway through, is not sufficient.

Commercial breaks/product placement. In terms of commercial breaks or product placement within a vlog, it needs to be clear when the ad or product placement starts. This could be via onscreen text, a sign, logo or the vlogger explaining that they have been paid to talk about a particular item by the brand.

Vlogger-promotion. If the sole content of a vlog is a promotion of the vlogger’s own merchandise, this would not be considered an advertorial. Rather, it would be a marketing communication. The video title should make clear that the video is promoting the vlogger’s products, but it’s unlikely that the vlog itself will need labelling as an ad if it’s clear from the context that it’s a marketing communication.

Sponsorship. Where a brand has sponsored a vlog, but the brand has no control over the vlog, this would not be considered an ad and would not be caught by the CAP Code. However, to ensure compliance with the CPRs, the vlogger should give a nod to the sponsor in order to disclose the nature of the commercial relationship.

Free Items. Vloggers may be sent free items by a brand. Where there is no condition attached to the item by the brand and the vlogger can choose whether or not to cover the item in a vlog, this would not be an ad caught by the CAP Code. In addition, where the brand provides the vlogger with free products on the condition that they are reviewed independent of any brand input, then, as the brand retains no control over the vlog, the video would not have to be labelled as an advertorial. However, in such circumstances, the vlogger should disclose to consumers that the vlogger has an incentive to talk about the product, along with the nature of the incentive, to ensure compliance with the CPRs.

Other Social Media Marketing

Vlogging isn’t the only aspect of social media marketing that creates compliance challenges, of course. There are other issues that brands need to be aware of when advertising and marketing using social media in the UK. We have outlined some of these below. For issues specific to the UK financial services sector, please see our previous blog post: UK’s Financial Services Regulator: No Hashtags in Financial Promotions.

Native Advertising (written advertorial). A native ad is advertising that resembles editorial content. Native ads are a popular form of content marketing, but again raise concerns that consumers may not be aware that the content is advertising in breach of the CPRs and Cap Code. Guidance issued in February 2015 by IAB (the UK trade association for digital advertising) advised advertisers to provide consumers with prominently visible visual cues to enable them to understand, immediately, that they are engaging with marketing content that has been compiled by a third party in a native ad format and is not editorially independent. The guidance suggests clear brand logos and the use of different design formatting for native ads. It also advises the publisher or provider of the native ad format to use a reasonably visible label that makes clear that a commercial arrangement is in place.

Employee Endorsements. Companies are keen to encourage their employees to use social media and become advocates for the company. However, companies must be careful; if an employee chooses to discuss his or her employer’s brand favorably on social media, then this is likely to be construed as an advert under the CAP Code, even where the employee is acting independently and not at the request of his or her employer. An employee endorsement that is not transparent also runs the risk of breaching the CPRs. Therefore, employees must make clear that they are affiliated with their employer when making any company endorsements on social media. Organizations should also provide employees with clear social media policies and training to avoid any incident of inadvertent advertising.

Ads via Twitter and Celebrity Endorsements. As mentioned above, the CPRs and CAP Code require users to be aware that they are viewing an advert. In terms of Twitter, this means that promotional tweets should be accompanied by the hashtag #spon or #ad. This is particularly the case where the advert may not be immediately apparent as a promotional tweet, e.g., where it is in the form of a celebrity endorsement. As with promotions using vloggers, companies are increasingly keen to use celebrities in connection with promotions in order to increase their brand awareness within that celebrity’s group of followers.

In March 2012, an advertising campaign by Mars involved reality star Katie Price tweeting about the Eurozone crisis, and soccer player Rio Ferdinand engaging his followers in a debate about knitting. The campaign involved four teaser tweets by each celebrity to focus attention on their Twitter profile (but with no marketing content), culminating with a final tweet that was an image of the celebrity with a Snickers chocolate bar and the line “you’re not you when you’re hungry @snickersUK #hungry#spon.” While the final tweet was clearly labelled as an advert, the ASA ruled that the first four tweets only became marketing communications at the point the fifth and final tweet was sent (as the first four tweets contained no marketing references). As a result, the ASA ruled that the campaign did not breach advertising standards as the fifth tweet (and as such, the entire campaign) was clearly identifiable as an advert.

However, Nike was less successful in June 2012. Soccer players Wayne Rooney and Jack Wilshere tweeted “My resolution – to start the year as a champion, and to finish it as a champion… #makeitcount.gonike.me/makeitcount.” While the ASA agreed that the tweets were obviously marketing communications, the reference to the Nike brand was not sufficiently prominent. The tweets also lacked #spon or #ad to signify advertising. As it was not sufficiently clear to all readers that the tweets were part of a marketing campaign, the advertisement was banned.

User-Generated Content. Companies also need to be wary when using user-generated content when promoting their brand. For example, companies may be deemed to be advertising if they: (i) provide a link to a user blog that includes positive comments, (ii) re-tweet positive tweets from users, or (iii) allow users to post comments on the company website. To ensure that such content is responsible, accurate and not misleading, harmful or offensive, companies should monitor user-generated content to ensure that the content is appropriate for the likely audience and preserve documentary evidence to substantiate any claims.

Advergames. Advergames are online video games that are created in order to promote a brand, product or organization by immersing a marketing message within the game. In May 2012, the ASA published guidance that made clear that advergames will be considered advertising and are subject to the CAP Code. For further discussion on advergames, please see our previous blog post: What Are the Rules of the Advergame in the UK?

Conclusion

The key message for organizations who want to use social media in their marketing campaigns is to treat consumers fairly and to be upfront and transparent. But good practice isn’t just about legal compliance, it will also help maintain consumers’ respect for and trust in your brand. If your social media campaign hits the headlines, you want it to be for all of the right reasons.

 

Federal Trade Commission Doorway Sign

In December 2014, we noted that the Federal Trade Commission’s (FTC) settlement with advertising firm Deutsch LA, Inc. was a clear signal to companies that advertise through social media that they need to comply with the disclosure requirements of Section 5 of the FTC Act. On September 2, 2015, the FTC announced a settlement along the same lines with Machinima, Inc., a company promoting the Xbox One system. This new action indicates that the FTC is serious about enforcing compliance in this space, so companies need to make sure that their advertising and marketing partners understand their obligations under Section 5.

A Quick Refresher on Online Advertising Disclosure Requirements

As we explained in our previous alert, the FTC’s Endorsement Guides describe how advertisers using endorsements can avoid liability under Section 5 for unfair or deceptive acts or practices. Simply put, a customer endorsement must be from an actual, bona fide user of the product or service and, if there is any material connection between the endorser and the advertiser that consumers would not reasonably expect but that would affect the weight given to the endorsement—such as payment or an employment relationship—then that connection must be clearly and conspicuously disclosed.

According to the complaint in In re Machinima, Machinima paid video bloggers (“influencers”) to promote Microsoft’s Xbox One system by producing and uploading to YouTube videos of themselves playing Xbox One games. Machinima did not require any disclosure of the compensation the influencers received, and many videos lacked any such disclosure. The FTC alleged that the payments would not be reasonably expected by YouTube viewers, such that the failure to disclose them was deceptive in violation of Section 5. In light of the Deutsch LA case, which dealt with endorsements on Twitter that did not include proper disclosures, In re Machinima seems uncontroversial. But what makes the case interesting is how close Microsoft came to being swept up in it.

Microsoft Escapes Liability, Narrowly

The FTC also issued a closing letter reflecting that it had investigated Microsoft, and Microsoft’s advertising agency Starcom, in relation to influencers’ videos. (Starcom managed the relationship with Machinima.) Even though the FTC did not ultimately take action against Microsoft (or Starcom), the closing letter is significant because it makes clear the FTC’s position that a company whose products are promoted bears responsibility for the actions of its ad agencies—as well as the actions of those engaged by its ad agencies.

According to the closing letter, Microsoft avoided an enforcement action because it had a “robust” compliance program in place that included specific guidance relating to the FTC’s Endorsement Guides and because Microsoft made training relating to the Endorsement Guides available to employees, vendors and personnel at Starcom. Furthermore, Microsoft and Starcom adopted additional safeguards regarding sponsored endorsements and took swift action to require Machinima to insert disclosures into the offending videos.

Given the increased reliance of advertisers on social media campaigns, the Machinima case provides both a clear warning and clear guidance to companies on how to minimize the risk of a Section 5 enforcement action. Not only must notice be provided of any paid endorsements, regardless of the medium in which they appear, but advertisers should also seriously consider having in place specific policies and procedures to address the FTC’s Endorsement Guides—as well as to ensure that their ad agencies and other involved parties comply with them.

iStock_000026397732_SmallIn a precedent-setting ruling, the Washington Court of Appeals in Thomson v. Doe refused to grant a motion to compel brought by a defamation plaintiff who had subpoenaed the lawyer-review site Avvo.com seeking the identity of an anonymous online reviewer, holding that, for a defamation plaintiff to unmask an anonymous defendant, that “plaintiff must do more than simply plead his case.”

The plaintiff in the case, Florida divorce attorney Deborah Thomson, filed a defamation suit against an anonymous poster of Avvo reviews. Claiming to be a former client, the reviewer stated that Thomson, among other things, failed to live up to her fiduciary duties, failed to subpoena critical documents, and failed to adequately represent the reviewer’s interests.

After Avvo refused Thomson’s subpoena seeking the anonymous reviewer’s identity, Thomson moved to compel compliance with the subpoena. The Washington State trial court denied Thomson’s motion and she appealed, presenting the Washington State Court of Appeals with what the court acknowledged was an issue of first impression in the Evergreen state: What evidentiary standard should a court apply when deciding a defamation plaintiff’s motion to reveal an anonymous speaker’s identity?

The court began its analysis by describing the holdings of the two leading cases on the issue: New Jersey’s Dendrite Int’l, Inc. v. Doe No. 3, which held that, to unmask anonymous defendants in defamation cases, the plaintiff must “produce sufficient evidence supporting each element of its cause of action on a prima facie basis; and Delaware’s Doe v. Cahill, which established that plaintiffs seeking to uncover the identities of anonymous speakers/defendants must clear a slightly higher evidentiary threshold—proof that their claims would survive a summary judgment motion.

The court also discussed the one court that “has significantly strayed from Dendrite and Cahill”: the Virginia Court of Appeals. In Yelp, Inc. v. Hadeed Carpet, another case we recently covered at Socially Aware, the Virginia Court of Appeals “declined to adopt either test, instead applying a state statute that required a lower standard of proof.” Specifically, Hadeed held that, in the Thomson court’s words, “a defamation plaintiff seeking an anonymous speaker’s identity must establish a good faith basis to contend that the speaker committed defamation.”

The Thomson court then cited with approval the Ninth Circuit’s approach in In re Anonymous Online Speakers. In that case, the Ninth Circuit determined that, when deciding whether to require disclosure of an anonymous speaker’s identity, the nature of the speech at issue should inform the choice of evidentiary standard. Holding that an online review of an attorney’s services is not merely commercial speech—which, the court explained, would warrant the lowest level of protection—the court rejected the Hadeed (good faith) standard. Since the Avvo review did not qualify as political speech either, the court also discounted the highest level of protection. The court then determined that the “motion to dismiss standard” was “inadequate to protect this level of speech” because, in a notice pleading state like Washington, “a defamation plaintiff would need only to allege the elements of the claim, without supporting evidence.”

Finally, the Thomson court addressed the “two remaining standards”: prima facie (Dendrite) and summary judgment (Cahill). The court ultimately decided that the prima facie standard was appropriate because the anonymous reviewer had yet to appear in the case and the plaintiff, therefore, was not in a position to file a summary judgment motion.

The court nevertheless observed that “the important feature” of both the prima facie and the summary judgment standards “is to emphasize that the plaintiff must do more than simply plead his case.” In other words, both standards require “supporting evidence … before the speaker is unmasked.” Under that standard, the court held, “Thomson’s motion must fail. As Thomson freely admits, she presented no evidence to support her motion.”

150728SociallyAware_Page_01The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we present a “grand unifying theory” of today’s leading technologies and the legal challenges these technologies raise; we discuss whether hashtags can be protected under trademark law; we explore the status of social media accounts in bankruptcy; we examine the growing tensions between content owners and users of livestreaming apps like Meerkat and Periscope; we highlight a recent discovery dispute involving a deactivated Facebook account; we discuss a bill before Congress that would protect consumers’ rights to post negative reviews on websites like Yelp; and we take a look at the Federal Trade Commission’s crackdown on in-store tracking activities.

All this—plus an infographic exploring the popularity of livestreaming sites Meerkat and Periscope.

Read our newsletter.

06_29SASocialNetworkCongress has taken a step toward protecting consumers’ rights to post negative reviews on websites like Ripoff Report or Yelp with the introduction, by Representative Darrell E. Issa of California, of the Consumer Review Freedom Act of 2015 (the CFRA).

The CFRA follows a California law, enacted in 2014, which made it illegal for businesses to penalize their customers for posting negative reviews of their products or services online. The California law, AB 2365, was passed in response to a growing number of incidents where businesses have used non-disparagement clauses buried in form contracts to charge fines of several hundred to several thousand dollars. Such incidents have occurred all over the country—from a New York hotel withholding $500 from a couple’s security deposit after a member of the couple’s wedding party posted a negative review, to a Michigan-based Internet retailer charging two of its customers in Utah $3,500 after they published a review criticizing the retailer’s customer service.

AB 2365 sought to put a stop to such incidents by prohibiting businesses from including in any contract for the sale or lease of consumer goods or services any provision that requires the consumer to waive his or her right “to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.” The statute also makes it unlawful to enforce such a provision “or to otherwise penalize a consumer for making any statement protected under” the law. This is presumably intended to address situations in which a business does not explicitly prohibit negative reviews, but instead seeks to impose a penalty on a consumer who posts a negative review, as in the Michigan case noted above.

The CFRA is intended to take the California policy and expand it nationwide. Similarly to AB 2365, the CFRA prohibits businesses from including in any form contract a provision that prohibits or restricts a person from, or imposes a penalty or fee against a person for, engaging in a “written, verbal, or pictorial review, performance assessment of, or other similar analysis of, the products, services, or conduct of a business or person which is a party to the form contract.” The CFRA empowers the Attorney General to bring actions for a civil penalty of up to $16,000 for each day that the business requires the use of the penalizing contract by a distinct person.

The CRFA also closes a potential loophole in AB 2365 that at least one enterprising organization had been encouraging its clients to use. Medical Justice, an organization that provides template form contracts to medical service providers, had included language in those contracts purporting to assign to the service provider the copyright in any review posted by a patient. If effective, this assignment would allow the service provider to issue takedown notices under the Digital Millennium Copyright Act or threaten the publishing websites with infringement actions. AB 2365 did not expressly address such assignment provisions, but the CRFA voids any provision that “transfers … to any person or business any intellectual property rights that the individual may have in any otherwise lawful [communication] about the person or the goods or services provided by the person or business.”

Though it is unclear how likely the CFRA is to become law, it has bipartisan sponsorship and certain key players have publicly voiced their support. For example, Yelp has come out strongly in favor of the CFRA in a post on its official blog. The bill is currently being reviewed by the House Committee on Energy and Commerce and has been referred to a subcommittee.

With a political environment that is increasingly hostile to non-disparagement clauses, businesses will now have to consider different ways of avoiding negative reviews—perhaps by providing better products and services.