Free speech about products and services is something like swinging your fist: your freedom ends at the other person’s nose.
Fire up your favorite online rant site and take a swipe at a company’s performance and you could be facing a hefty fine. You might have signed up for such a penalty when you signed the contract for the goods or services the firm provided.
The legal language that speared you is called a non-disparagement clause. Companies have been using them for some time in employee contracts; lately, they’ve been showing up more and more in purchase agreements.
They’re designed to head off the kind of defamatory statements that a single annoyed customer can launch via social media.
Now, you might get dragged into court for violating your non-disparagement agreement and you could claim it was hidden in the miles of mouse print that almost no one reads. A judge might agree …or, the judge might give the person who posts defamatory statements a tongue-lashing of his own.
Jane Perez had written defamatory reviews, accusing remodeler Chris Dietz of trespassing and stealing jewelry as well as doing sub-par work. Dietz sued, and Perez took down the scathing reviews.
In a Fairfax County, Virginia, Circuit Court in June, Judge David Schell declined to grant Dietz an injunction — since the review had been taken down — and also decided not to allow a retrial.
In his ruling, Judge Schell wrote that it was not his job to rule on free speech … but he had a prediction. “If you want to chill free speech, keep it up, because eventually one of these companies is going to win big,” the judge wrote. “That will chill free speech when somebody is hit with a huge monetary verdict,” he added.
Compare that outcome with a Utah case in which a company was ordered to pay $306,000 to a couple who wrote a harsh review after the company failed to deliver a product they had ordered. When it didn’t come, they canceled the order.
KlearGear.com had said the couple violated its non-disparagement clause and tried to collect $3,500 when the couple didn’t retract the statement.
KlearGear’s owners say they’re headquartered outside the U.S. and didn’t receive proper notice of the lawsuit. It’s unclear if the company will pay up.
The New York Post reported last week on this threat posted on the website of a Hudson, New York, hotel regarding weddings: “There will be a $500 fine that will be deducted from your deposit for every negative review” on any Internet site by anyone in the wedding party. The backlash was huge, and the owner of the Union Street Guest House was quoted later as saying the fine threat was posted as a joke. It’s gone from the website, and now neither the owner nor anyone else is laughing.
The only Maine statute that seems to apply protects speech in public hearings and other actions dealing with public policy. However, lawmakers in other states are taking notice.
A bill approved this spring by the California Assembly Judiciary Committee would prohibit fining customers who publish rants, unless they “knowingly, voluntarily, and intelligently” waive their immunity. Pennsylvania lawmakers are considering broadening protection against strategic lawsuits against public participation (SLAPPs) beyond environmental issues.
Northeast CONTACT does not offer legal advice. We will pass on advice of Consumer Affairs ( consumeraffairs.com) to look through purchase agreements for terms like “non-disparagement,” “negative review,” “no-review policy” and “public comment.”
Check the major review sites (Angie’s List, Yelp) for comments; a mix of good and bad reviews probably reflects reality rather than a one-sided litany. Regarding choice of language, note the Bangor Daily News blog use policy: no vulgarity, incivility, name-calling, slurs or personal attacks.
Good consumers don’t inflame, they inform.
Consumer Forum is a collaboration of the Bangor Daily News and Northeast CONTACT, Maine’s all-volunteer, nonprofit consumer organization. For assistance with consumer-related issues, including consumer fraud and identity theft, or for information, write Consumer Forum, P.O. Box 486, Brewer, ME 04412, visit http://necontact.wordpress.com or email email@example.com.
This new column might be viewed with an earlier Consumer Forum column from August 7, 2011 – When all else fails, complain