There has been a lot of attention lately on consumers’ legal rights when reviewing products online. In 2013, we followed the saga of a patient trying to sue his dentist after the medical professional tried to censor negative online reviews. And last week, a similar pro-consumer ruling came down against toy-maker KlearGear after it sued a customer for less-than-positive feedback on RipoffReport.com.

Most notably, we reported on wireless router manufacturer Mediabridge sending a scathing letter that threatened a lawsuit against an individual who wrote a negative product review on Amazon. Our follow-up report asked legal experts about the line between critical and libelous online reviews. Afterward, we even enlisted a defamation attorney to answer readers' direct questions about online speech rights.

Now, in light of all the increasing attention, the California legislature appears to be taking up the cause of protecting online reviewers’ rights. A recent bill making it illegal for retailers to require customers to waive their rights to express public dissatisfaction in online reviews and on other platforms—often through the use of so-called clickwrap licensing agreements —passed the state assembly last Thursday.

The bill still needs to be passed by the state senate and then signed by the governor to take effect. But as the most populous state in the country, California state laws can sometimes have an outsized effect on the nation as a whole.

According to the language of AB 2365, introduced on February 21, 2014 by California Assembly Member John A. Pérez (D-Los Angeles), a contract would be deemed unlawful “if it includes a provision requiring the consumer to waive his or her right to make any statement regarding the consumer’s experience with the business, or to threaten or seek to enforce such a provision… unless the waiver of this right was knowing, voluntary and intelligent.”

The bill further explains that “any person who violates this section shall be subject to a civil penalty” payable to either the consumer or the general fund of the government entity that filed the action. A willful violation could reach up to $10,000.

According to the bill's legislative research, Pérez appeared motivated by one of the federal judicial cases noted above—the one in which KlearGear sought to collect $3,500 from a Utah couple that left a negative online review of the company after it failed to deliver a less-than-$20 order in December 2008. Last Thursday, a federal court judge ruled in favor of the Utah couple.

Plain language

The proposed law appears to take aim at online licensing agreements that consumers often enter into with companies when they click through the many boilerplate terms and conditions of various online services. Buried deep in the small print of a number of these contacts are provisions stating that consumers agree not to write negative reviews about the service provider.

“If merchants think that our First Amendment free speech rights need to be curtailed, they should say so upfront and in plain language,” Pérez explained of the impetus for his bill, as reported by the Times.

“One of the hallmarks of recent technological innovation is consumer empowerment.” John Doherty, general counsel of TechNet, a trade group representing various technology companies, explained to Ars on Monday morning. “By declaring that a non-disparagement clause contained in a contract for sale or lease of consumer goods or services is unlawful—unless the clause was knowingly, voluntarily, and intelligently waived—AB 2365 appropriately balances a consumers right to free speech while protecting legitimate contractual needs of businesses.”