No Disparagement Clauses

I wonder how long before this comes to the low end world:

http://www.marketwatch.com/story/you-just-gave-up-your-first-amendment-rights-2014-03-19

raindog308 said:

I wonder how long before this comes to the low end world:

http://www.marketwatch.com/story/you-just-gave-up-your-first-amendment-rights-2014-03-19

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It won't matter for the low-end, because lawyers cost more than $7.

EDIT: And the disparagement clauses are insane. Any company who lists this in their terms should be immediately avoided. It's as if saying, "I have no real reason to work to impress you because you're not going to write a bad review anyhow." In fact, it may encourage worse service hoping someone would write a bad review so they can try to win a lawsuit over them. People suck.

It won't matter for the low-end, because lawyers cost more than $7.

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In the low end f*cktard sector you just have hosts who will cancel service if a negative review is posted online, and in a couple of cases I've seen hosts threaten to report the reviewer to FraudRecord for posting a negative review (with the reason for the fraud report given as "slander", "staff abuse", etc)

you keep on whining on public forums, you keep on submitting multiple tickets, spamming our helpdesk, and trying to slander/bash us for running out stock when YOU did not pay in time.

I've cancelled/terminated your plan and issued you a full refund. In addition, your account will be permanently closed and you are also permanently banned/prohibited from accessing our website, client area, are blacklisted from our SolusVM, and will be reported to the FraudRecord database for your actions. In all due respects, I will say this as bluntly as possible: We are NOT going to be putting up with you anymore. We've had it.

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and then:

OP wasn't reported for fraud. Helpdesk abuse/ticket spamming/slandering is more like it. FR serves a multitude of purposes.

OP was issued a perma ban for reasons described in my previous post.

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http://lowendtalk.com/discussion/19282/a-customer-from-greenvaluehost

What? That thing holds in court? That cannot be legal.. surely.... shiiitt

What a mess - every provider that does include such "don't write bad things about me" rules is on my ignore list.

I recall a provider chased after people for posting bad reviews. Not sure if it was in their ToS, but they threatened.

I'd put up a public list of anyone with such a clause if it ever came down to it.

I have in the past thought about adding "Reviews made will be made under penalty of perjury" but its never really been an issue.

Thats just insane that you can agree away free speech.

fisle said:

What? That thing holds in court? That cannot be legal.. surely.... shiiitt

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It's perfectly legal.  I'm not saying I'd sign up for service with someone who had that in their TOS, but it's legal.

It's not a free speech issue, really (the government isn't censoring you).  You're entering into a private contract between two parties and one says "the terms of our agreement include you agreeing never to say anything negative about us in public and the remedy is $_____".  Then it's up to you to decide if you want to sign.

An NDA is sort of similar in the sense that it's a private agreement, not a free speech issue.

Other countries may have different laws but I think this is perfectly legit in the US.  The finer details are likely tricky - e.g., does this clause survive if the host fails to perform, if it's provable the host never intended to deliver the agreed service or the host was incapable of providing the agreed service is there even a valid contract, etc.

Again, not something I'd sign (hosting or otherwise) as a customer.

Don't think I'd ever sign up anywhere with such a clause.  It's a shame that many people do not read such agreements. 

Well contracts are contracts.  You can agree to sacrifice your first born and provide sexual favors for free too if you'd like.

Let the lowend* emulate this.   I'll gladly slaughter any company lowend or not that adheres to this bullshit precedent of corporate bullying.

Who is first?

fisle said:

What? That thing holds in court? That cannot be legal.. surely.... shiiitt

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It's legal* to add to your contract, but it actually isn't enforceable

texteditor said:

It's legal* to add to your contract, but it actually isn't enforceable

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Why not?

There are all sort of contracts in which people promise not to say something about something, and pay a penalty if they do.  An NDA is an example.  Employment contracts are sometimes another.

It's impossible for a host to prevent me from posting a negative comment about them if I've never been a customer, but if I agreed to a contract in which I said they could charge me $250,000 if I post a negative review, that's something I agreed to.

Like it or not, it's simple age old contract law.   You agreed to it.

Nonetheless, I welcome the stupid in this industry to bring it, so I can wine stomp their grapes.

raindog308 said:

Why not?

There are all sort of contracts in which people promise not to say something about something, and pay a penalty if they do.  An NDA is an example.  Employment contracts are sometimes another.

It's impossible for a host to prevent me from posting a negative comment about them if I've never been a customer, but if I agreed to a contract in which I said they could charge me $250,000 if I post a negative review, that's something I agreed to.

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Not all NDAs/no-compete clauses are enforceable either, our laws are set up so 'age-old contract law' has actual limitations to it, it's not completely boiled down to "you signed it, now you're fucked"

Not all NDAs/no-compete clauses are enforceable either, our laws are set up so 'age-old contract law' has actual limitations to it, it's not completely boiled down to "you signed it, now you're fucked"

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...and not all employment contract non-disparagement clauses are unforceable or legal either.  A Quicken Loans employee filed a complaint with the The National Labor Relations Board last year and a judge ruled that a non-disparagement clause (as well as a non disclosure clause) in Quicken Loans employee contract was unlawful because it violated section 7 of the National Labor Relations Act.

http://www.lexology.com/library/detail.aspx?g=7247c84e-5af8-41c1-a586-9a2b080aec3d

There have also been non-disparagement cases where the courts found in favor the employer (and there was that Charlie Sheen #winning lawsuit that involved a non-disparagement clause)

As far as non-disparagement clauses in consumer contracts, the most notable case was Kleargear which was sued after it tried to enforce its non-disparagement suit after a customer posted a negative review.  The customer won the case last week in a default judgement.

http://en.wikipedia.org/wiki/Kleargear

raindog308 said:

I wonder how long before this comes to the low end world:


http://www.marketwatch.com/story/you-just-gave-up-your-first-amendment-rights-2014-03-19

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Necroing an ancient thread because there is a bill pending in Congress, the Consumer Review Freedom Act of 2015, which would prohibit non-disparagement clauses in customer/vendor contracts.


Main points of the proposed law:

For any customer-vendor agreement that one party can’t realistically negotiate or make changes to, the CRFA would void any clause that:

1. Restricts the customer’s ability to post a review of the vendor,
   
2. Imposes a fee against customers for leaving negative reviews, or
   
3. Transfers any intellectual property rights in a review to the vendor.
   

It would also make it illegal for businesses to extend contracts like that to their customers.

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EFF article from yesterday (Nov 3): https://www.eff.org/deeplinks/2015/11/consumer-review-freedom-act-would-protect-customers-right-post-reviews

Adding an example of the type of TOS clause which will be prohibited if this bill passes:

Communications with or submitted to Incero including but not limited to emails, support tickets, chats, and voice conversations are the exclusive property of Incero and are not to be copied, shared, or otherwise reproduced without prior explicit written permission from Incero

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from H.R.2110:

Declares a provision of a form contract to be void from the inception if it: (1) prohibits or restricts a person who is a party to the contract from engaging in written, verbal, or pictorial reviews, or other similar performance assessments or analyses of, the products, services, or conduct of a business that is a party to the contract; (2) imposes penalties or fees against persons who engage in such communications; or (3) transfers or requires the individual to transfer any intellectual property rights in any such otherwise lawful communications about the person or the goods or services provided by the person or business. (Thus, bars certain contract provisions that prohibit consumers from commenting publicly about businesses.)

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related: http://www.webhostingtalk.com/showthread.php?t=1527389

raindog308 said:

Why not?


There are all sort of contracts in which people promise not to say something about something, and pay a penalty if they do.  An NDA is an example.  Employment contracts are sometimes another.


It's impossible for a host to prevent me from posting a negative comment about them if I've never been a customer, but if I agreed to a contract in which I said they could charge me $250,000 if I post a negative review, that's something I agreed to.

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This will likely be illegal in many countries. In the Netherlands, I believe it falls under section h. of the the "graylist for consumer contracts" (click). In the case of the graylist, the seller must prove that the contract clause is necessary and reasonable; otherwise, it is illegal and unenforceable. The key point is that an NDA is not the same as a consumer purchase.