[LINK] The Threat of Dunning, to chill speech

[Roger Clarke]

[The corporates have devised ways to chill your speech.

[The privacy angle is this bit:
>if a consumer violates the ['non-disparagement clause'] they will 
>have 72 hours to remove [their] post or face a $3500 fine. If that 
>fine is not paid, the delinquency will be reported to the nation's 
>credit bureaus.

[The 'non-disparagement' clause says:
"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."

[It's not even worth setting a student assignment on an expression 
like 'any action that negatively impacts [corporation-name]'.  It's 
simply grossly unconscionable.

[Of course, nothing like that could ever happen in Oz.]

(Picked up from Lauren Weinstein's list)


Fined For Posting A Negative Review Online
11 November 2013
http://www.kutv.com/news/features/gephardt/stories/vid_474.shtml

(KUTV) For Christmas several years ago, Jen Palmer's husband ordered 
her a number of trinkets from the website kleargear.com. But for 30 
days, Kleargear.com never sent the products so the transaction was 
automatically cancelled by Paypal, Jen said.

Wanting an explanation, Jen says she tried to call the company but 
could never reach anyone. So frustrated, she turned to the internet 
writing a negative review on ripoffreport.com.

"There is absolutely no way to get in touch with a physical human 
being," it says. And it accuses kleargear.com of having "horrible 
customer service practices."

That was the end of it, Jen thought, until three years later when 
Jen's husband got an email from Kleargear.com demanding the post be 
removed or they would be fined. Kleargear.com says Jen violated a 
non-disparagement clause. It turns out that, hidden within the terms 
of sale on Kleargear.com there is a clause that reads:

"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."

The clause goes on to say if a consumer violates the contract they 
will have 72 hours to remove your post or face a $3500 fine. If that 
fine is not paid, the delinquency will be reported to the nation's 
credit bureaus.

"This is fraud," Jen said. "They're blackmailing us for telling the truth."

But Jen says she was not always so defiant. After receiving the 
threat she says she was terrified. She contacted Ripoffreport.com to 
ask that the post be removed but Ripoffreport.com won't let her 
without paying $2000 she says.

Jen and her husband also disputed the ding with the credit bureaus 
but because Kleargear.com says the charge is valid the the ding 
remains.

Now as a result, Jen and her husband are amassing rejection letters 
from lenders as they apply for loan to buy a new car and fix their 
home's furnace.

"I have the right to tell somebody else these guys ripped me off," Jen said.

Furious, Jen decided to Get Gephardt.

As we began looking into this, we quickly learned that Jen is not 
alone in her frustrations with Kleargear.com. There are many posts in 
addition to Jen's on Ripoffreport.com as well as other online 
consumer complaint boards. In 2010, the company was slapped with an 
"F rating" by the Better Business Bureau for "not delivering products 
purchased online in a timely manner," says the BBB's website. 
Kleargear.com today has a "B" rating.

When we tried calling Kleargear.com we were unsuccessful in getting 
through to anybody. By email, a person who did not identify him or 
herself defended the $3500 charge referring again to Kleargear.com's 
terms of sale. As for Jen being threatened - remove the post or face 
a fine - the company said that was not blackmail but rather a, 
"diligent effort to help them avoid [the fine]."

Jeff Hunt is a First Amendment attorney in Salt Lake City. We asked 
him to weigh in on Jen's story.

"I think this is outrageous that a company like this would force a 
consumer to relinquish their first amendment rights to speak about 
their product as a condition of sale," Hunt said. "I've never seen 
anything like it."

Hunt says he thinks there is a good chance a judge would say that 
non-disparagement clause is unconstitutional.

"I have a serious question about whether a court would enforce that 
kind of covenant because it's massively over broad and against public 
policy," Hunt said.

As for Jen and her husband, they say they can't afford a lawyer. Get 
Gephardt has put her in touch with the media relations people at the 
credit bureau, Experian. She hopes one final appeal will get the ding 
removed.

There is some question as to whether or not that non-disparagement 
clause existed way back in 2008 when Jen wrote that negative review. 
Kleargear.com says it did but website archives from 2008 don't show 
it the clause.

Either way, Jen says she wants others to be warned: If you buy 
anything from kleargear.com and you don't like the product or the 
service they say you are contractually forbidden from telling anybody 
about it. If you do, expect a bill. If you don't pay the bill, expect 
them to ding your credit.

By Matt Gephardt
Produced by Stephanie Clemens
Photography by Brian Morris
Edited by Aaron Colborn

-- 
Roger Clarke                                 http://www.rogerclarke.com/
			            
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
Tel: +61 2 6288 6916                        http://about.me/roger.clarke
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in the Faculty of Law            University of N.S.W.
Visiting Professor in Computer Science    Australian National University