Increasingly more common than threat of legal action is a fine for "non-disparagement" from the company for providing a negative review (whether true or not) and burying that little gem of clause in the fine print of their terms and conditions, thus they get around the pesky "law thing" by saying you agreed to it.
Can a company stop you from writing a negative online review?You're entitled to your opinion – just be prepared for possible legal consequences if you share it online.
A growing number of companies now have "non-disparagement clauses" in their contracts or terms of use. They limit a customer's right to comment on social media sites such as Yelp about the product or service they purchased – even if that comment or review is truthful and accurate.
A non-disparagement clause might look something like this:
Any disputes between the parties remain confidential. Customers shall not make or encourage others to make any public statement that is intended to, or reasonably could be foreseen to, embarrass or criticize the company or its employees, without obtaining prior written approval from the company.
"Non-disparagement clauses have the potential to create a profound chilling effect," said Andy Sellars with the Harvard Law School's Cyberlaw Clinic. "Their mere existence may scare consumers from writing a review in the first place."
....A hotel in Hudson, N.Y. received a great deal of unwanted publicity this summer when its no-negative-review policy for weddings was made public. The hotel told couples they'd be charged $500 for any negative comment posted by the wedding party or any guests about their stay at the inn. As CNBC reported after the social media backlash, the owner issued a statement saying the policy was "intended as joke" and not something employees were told to enforce.
Ellen Zavian, a law professor at George Washington University, told NBC News this is not an isolated case.
"I'm seeing these types of clauses in more and more contracts – doctors, dentists, architects and software providers," she said
When Zavian went to see a new doctor, she found a non-disparagement clause in the paperwork she was asked to sign.
"It said I was not allowed to say anything, not even something positive, about my experience," she recalled. "They refused to take it out and I refused to be seen. So, I walked out."
Zavian, who teaches a course on entrepreneurship at GWU, advises her students that non-disparagement clauses are bad for businesses, because they can backfire and alienate customers.
.....
Does anyone really try to enforce these non-disparagement clauses? Yes, they do.
In 2008, John Palmer ordered Christmas gifts for his wife, Jen, from an online retailer called KlearGear. When the merchandise didn't arrive, Jen started calling the company and found it impossible to reach anyone on the phone. She shared her frustration on the website Ripoff Report.
In 2012, more than four years later, KlearGear slapped the Palmers with a $3,500 fine for that negative review. The company cited its anti-disparagement clause which read, in part:
In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.
http://www.cnbc.com/id/102032954#.
It should be noted that the Palmers tried to get Ripoff Report to take down the post, just to resolve the issue, but the website only does so if you pay $2,000 fee and declare the statement to be false. They were sent to a colleciton agency for the $3,500 "fine" and their credit rating was damaged. They eventually won their lawsuit in court and were awareded $306,750 because KlearGear failed to repond to the suit or appear (thus the law was never tested).
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