GREENSBORO, N.C. (WFMY) -- Consumers have a right
to complain, right? Well, it depends.
For Christmas several years ago, Jen
Palmer's husband ordered her a number of trinkets from the website
"You never got your Christmas present?
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:
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
The clause goes on to say if a consumer
violates the contract they will have 72 hours to remove your post or face a
$3,500 fine. If that fine is not paid, the delinquency will be reported to the
nation's credit bureaus. And that's exactly what happened to Jen.
2 Wants To Know talked with a First
Amendment lawyer Larry Walters of the Walters Law Group. He thought putting a
"no negative review" clause in the terms of service was sneaky.
"Frankly its unrealistic to expect the consumer to read through
many pages of legalese and boilerplate every time they do business with an
on-line service provider. That's why entities like the FTC and other consumer
protection agencies will enforce consumer protection laws and say, 'Look, this is
Until that time, Larry Walters says check
the Terms of Service.
If you feel the issue is important
enough to take a risk you can post that negative complaint.
But even if there is no negative review
clause, every consumer should remember this when posting any kind of
"It's within a person's First Amendment rights to say, 'I
think this company stinks or they are a lousy company'. Something that is a
matter of opinion when you get down to facts and say, 'This company stole
$20,000 from me or refused to refund any of my purchases after I notified them,'
those are factual issues and they have to be true for you to assert your
What about Yelp and Trip Advisor and other review based
"You see more and more companies enforce
on line terms of service that include these anti disparagement clauses that will
put those sites out of business. Nobody is going to take the risk of posting if
they are going to get slapped with a heft fine or a lawsuit so it's going to be
very interesting to see how it plays out because the fate of many of these
online review companies is at stake."