UPDATE 11/18: We’ve been in touch with Jen after numerous readers reached out to Consumerist saying they wanted to help with her case. She’s going to keep us in the loop about her situation, but wanted share a message with those who’ve been supporting her and her husband. “If you could just convey to everyone how much we deeply appreciate all the support the internet has generated, that would be wonderful,” Jen writes. Our readers are the best.
We’ve all seen the social media meltdowns that can ensue when customers write negative things about a company online, which always result in the company looking like the bad guy whether it is or not. But one online retailer has taken that revenge into the real world, slapping an unsatisfied customer with a $3,500 fine and dinging her credit score after she didn’t pay up.
A few years ago, Jen’s husband ordered a bunch of trinkets from a website that appears to deal in the sort of odds and ends one might find at a Spencer’s Gifts. But 30 days after he ordered it, the products hadn’t arrived and PayPal canceled the transaction, she tells KUTV.com.
She wanted to know why the items never showed up, so she did what any logical customer would do and called up the company to get some information. Unfortunately she couldn’t reach anyone, so she channeled her frustration into a negative review on RipoffReport.com.
“There is absolutely no way to get in touch with a physical human being,” it says, accusing the company of having “horrible customer service practices.”
Done and done, right? Wrong. Fast forward three years later when her husband got an email from the company (which means someone works there after all, eh?) demanding that the post be taken down or they would be fined.
The company cited a “non-disparagement contract” within its terms of sale with a clause that it says gives it the right to demand such a fine:
“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 [our company], its reputation, products, services, management or employees.”
If you violate that contract, the clause says a consumer has 72 hours to remove the post or face the $3,500 fine. If it’s not paid, the delinquency is then reported to credit bureaus.
“This is fraud,” the woman says. “They’re blackmailing us for telling the truth.”
She and her husband attempted to get RipoffReport.com to pull the review but were told that wasn’t going to happen, and the credit bureaus say that because the company claims the charge is valid, the credit dent will remain.
When KUTV.com dug a little deeper, the news team found that the company had an “F” rating from the Better Business Bureau in 2010 (two years after the order was placed) for “not delivering products purchased online in a timely manner.”
The company also claimed in an email to KUTV.com via an unidentified person that the $3,500 fine and the alleged threat of removing the post or facing the fine wasn’t blackmail, just a “diligent effort to help them avoid [the fine].”
The news station spoke to a First Amendment attorney who pretty much said exactly what we’re thinking — this is unheard of.
“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.”
He says, and we agree that there’s a pretty darn good chance any judge facing this issue in court would throw out a non-disparagement clause as 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,” he explains.
In the meantime, the couple can’t afford an attorney to fight the clause on the grounds of its likely unconstitutionality but are working with Experian to try and fix the damage done to their credit.
How about this for a sales contract? You sell me something, you deliver it. You don’t, well then your contract is null and void, sir. Harrumph.
Previously in vengeful companies: Criticize Dentist On Yelp, Get Threatened With Felony ‘Internet Business Defamation’; Shoe Store Allegedly Bans Mom Over Son’s Negative Yelp Review; Restaurant Owner Gets 90 Days In Jail For Creating Fake Sex Site Profile For Unsatisfied Customer; Restaurant Owner Gets Revenge On A Customer With A Fake Sex Site Profile, Hooks Up With Libel Conviction
Fined For Posting A Negative Review Online [KUTV.com]