Rant at Your Peril

Jul 2, 2014 by


complaint department closedOne of the wonderful (I think?) features of the Web is that all we little people have the opportunity to raise a stink about perceived mistreatment by a corporate entity and actually have an audience larger than just our long suffering family and friends. I’ve used this technique with some success myself through this blog and Money Counselor’s Twitter account. (See Stock Huckster at Work, E*Trade Refunds Transfer Fees!, and Whoa! A 25% Car Loan? for just three examples.)

In short, the Web gives us the opportunity to rant, and potentially to gain a lot of attention if we’re creative and clever. Remember Dave Carroll, the guy who became famous and launched a new career after writing and posting online his performance of “United Breaks Guitars,” a song about how United Airlines abused his prized instrument? The threat of a rant gone viral scares the bejeebus out of many organizations.

But some companies are fighting back.

Enter the “Non-Disparagement Clause”

Before you decide to vent online, better check the fine print of any contracts to which you may have, how ever barely noticeably, agreed.

I haven’t done any surveying, but I suspect the approach the online retailer KlearGear.com has taken to combat online rants is becoming more and more common. Check this clause from KlearGear’s Terms of Sale and Use:

kleargear.com non-disparagement clause

Excerpt from KlearGear.com’s Terms of Sale and Use

When you buy anything from KlearGear.com, at some point in the checkout process you’ll be clicking a button that means you accept KlearGear.com’s Terms of Sale and Use, including the above Non-Disparagement Clause.

Doesn’t Matter Whether Your Beef Is Legit

Please note a key feature of this clause: whether the complaint you have with KlearGear.com is legitimate is irrelevant. Regardless of anything, when you buy from KlearGear you’re agreeing that you will not take “any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees,” period. In short, you’re agreeing to forfeit your right to free speech on the Web (among other things), no matter what KlearGear.com does to you.

Obviously the Clause’s purpose is not, as it claims, to “ensure fair and honest public feedback”; it’s to suppress negative feedback.

 

What Happens If You Violate KlearGear.com’s Non-Disparagement Clause?

The Clause also spells out the consequences—to which you’re also agreeing when you buy and click your acceptance of KlearGear’s Terms of Sale and Use—should you squawk publicly about a problem you have with KlearGear: you’ll be billed $3,500 as a temporary placeholder for KlearGear’s litigation costs in suing you for violation of its sales contract with you, until those costs are fully known. And if you refuse to pay the $3,500? KlearGear.com says it will report the delinquent debt to the credit reporting agencies, which would then body slam your credit score.

Is KlearGear.com’s Non-Disparagement Ban Justified?

The Web makes it easy for any wacko to post whatever they like, whether or not valid. I’m quite sure loads of baseless and one-sides rants are posted, tweeted, and facebooked that unfairly disparage just about every company, product, and service on the planet. Apparently KlearGear’s had enough and decided to fight back. But does its Non-Disparagement Clause cross a line?

No one’s required to buy at KlearGear.com, right? If you don’t like its Terms of Sale and Use, you’ve got the right to tell KlearGear to stick it by shopping elsewhere. That’s what I would do. And as I recently wrote with respect to credit card agreements, not reading the fine print can come back to bite you.

Are Non-Disparagement Clauses Common These Days?

Have you run across a non-disparagement clause in any other business’ terms of sale? What do you think of KlearGear’s tactic?

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10 Comments

  1. Most of these TOS are bullshit and unenforceable. They cannot prevent your right to free speech. As long as you present factual information or present it as strictly your opinion, they cannot get you for libel either.

    • These terms may be unenforceable, but if you take a look through the link in the article at the BBB complaints filed, defending oneself against attempts at enforcement can be costly, time consuming, and stressful. I hate to think what it would take to have removed from my credit report a baseless and wrongful $3500 delinquency reported by a company like KlearGear. I think the best thing for consumers to do is actually read these Terms of Sale, refuse to do business with offending companies, and let them know the reason you’re not patronizing them. There’s no shortage of retailers on the planet, that’s for sure.

  2. I’m sure our workplace has some sort of non-disparagement clause in our contracts, but I am very happy working there, and they pay me a lot of money with good benefits.

    I’m not so sure about other companies that we do business with, like cable, utilities, and such. My feeling there is that if they do a disservice to me, I will do my best to get it cleared up, and if that fails, then I will rant about it. I may not rant on my blog, because I do not want to get a cease and desist notice from their lawyers, but I will sure as hell find an outlet to rant on. It may be a newspaper’s comment section, or it may be a site like Huffington Post. I most certainly will rant on Facebook and get all my friends to rant as well.

  3. Wow, I have never even seen a disparagement clause and didn’t really even know they existed until I read this. I complain about companies all the time that I feel have mistreated me in some way, on social media especially. There’s no better way to get a company’s attention than that. It’s probably a stupid thought, but when I was that Klear Gear has such a clause, it made me wonder why. Are they bad enough that they need to have it?

  4. This is why not reading TOS can backfire you… I used to skip any TOS but now that there are stories about going to court or being fined because of not reading TOS properly it makes me be more careful when I use new service.

  5. Student Debt Survivor

    Very interesting. I’d only recently heard about these clauses and truthfully I think they’re a little foolish. As long as you’re not blatantly lying about the quality of a product you purchased or service you received I think you should be able to say whatever you want.

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