Contract Stipulation

<p>Does anyone have a stipulation in their photography contract that stipulates that any client<br>

who agrees to use your services CANNOT post any negative review of your company anywhere<br>

at any time or they will be held liable for damages that arise out of such negative reviews.</p>

<p>If they refuse to agree to that, they can go elsewhere. Is this enforceable ? My son just read, <br>

and im going to post the link as soon as I can, where a photographer sued a client who violated<br>

his contract terms regarding "negative reviews" and won in small claims court. </p>

<p>Your thoughts.</p>

<p> </p>

<p>John, without reading your link, I would say that enforceability might seem dubious at best, notwithstanding a small claims court ruling. </p>

<p>An extreme one-sided contract as described can be interpreted as unconscionable thereby rendering it unenforceable:<br>

<a href="http://en.wikipedia.org/wiki/Unconscionability">http://en.wikipedia.org/wiki/Unconscionability</a></p>

<p>Even if the client "knowingly " agreed to it ?</p>

<p>I can't seem to copy and paste the "terms of service" stipulation of the link to the article. I copy it but the "paste" portion doesn't show here in this box when I try to paste it. </p>

<p>I have the article bookmarked but can't paste into here.</p>

<p>It's a "Kleargear' article. Basically the company has a terms of service clause that says a client cannot leave any negative reviews.......it says it more eloquently than that though....</p>

<blockquote>

<p>"Even if the client "knowingly " agreed to it ?"</p>

</blockquote>

<p>John, anyone can knowingly agree to anything, but it won't necessarily mean it's lawful or binding. An extreme example: You can sign a contract with an unscrupulous bank employee to defraud the bank, but you're not legally required to execute the terms of the contract you agreed to. </p>

<p>Is this the article?<br>

<a href="http://boingboing.net/2013/11/15/kleargear-com-bills-woman-350.html">http://boingboing.net/2013/11/15/kleargear-com-bills-woman-350.html</a></p>

<p>I think a clause like that is a little iffy in terms of being enforceable. More so as a public policy issue the courts may recognize than the unconscionable argument. With due respect to the more knowledgeable small claims judges and to those too swamped and lacking resources to do research on so many cases, I don't put too much stock in small claims judgments as authority. (i.e. some allowing copyright infringement cases to go forward despite only federal court having jurisdiction ect.).</p>

<p>More important may be the turn off that such contract terms may have for potential clients. Can the potential loss of business arising from even having the clause outweigh the potential loss of a bad review?</p>

<p>Enforcable or not, it probably isn't a good idea. Evidenced by the fact that the company doing it no longer has a Facebook page as a response to an avalance of negative coments.</p>

<p>It may be legal to be a jerk, but it is not advisable. I had never heard of the site before, and now the only knowlege I have is to avoid doing business with them, and it's not because of a bad review I read.</p>

<p>I suspect the stipulation would be unenforceable on at least four grounds.</p>

<p>"Non-Dispargement Clause -- In an effort to ensure fair and honest public feedback (...), your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees."<br /> <br />First, it is so broadly stated that it would appear to prevent a person from suing the company since a lawsuit often "negatively impacts" a company's reputation and sales and if proceedings were instituted, the person the person would be liable to pay $3500 or more toward the company's own legal fees unless the person publicly retracted and dropped their suit.</p>

<p>Second, even if the stipulation were interpreted as being limited to making negative comments in public, the stipulation would appear to violate "public policy", making it unenforceable. A contract stipulation is said to be against public policy if it tends to promote breach of the law, or tends to harm the state or its citizens.<br /> It is certainly harmful to the citizens of a democratic state to prevent them from commenting freely and publicly on a company if what they have to say is true or not otherwise a violation of the laws prohibiting libel or slander.<br /> <br />Third, he prohibition of making disparaging comments in no way ensures fair and honest public feedback. In fact, such a prohibition has a chilling effect on constitutionally guaranteed free speech rights and would limit public comment to positive endorsements.</p>

<p>Fourth, in law, "disparagement" means making FALSE and INJURIOUS statements about a person, company or product. The plaintiff has to prove that the statements are false and can prevail only by proving that the statement caused a third party to take some action resulting in specific pecuniary loss to the plaintiff. Usually, TRUE statements are a perfect and absolute defence against a charge of "disparagement".</p>

<blockquote>

<p>It may be legal to be a jerk, but it is not advisable.</p>

</blockquote>

<p>+100</p>

<p>The backlash is more likely to cause problems than a negative review.</p>

<p><Chas><br /><br /></p>

<p>I can't imagine anyone seeing a clause like that as positive. I would see it as an indicator of prior bad reviews. I sure wouldn't sign it if it was in anything given to me.</p>

<p>To collect for damages due to a breach of contract, you have to show entitlement and quantify the damages. There has been discussion here regarding entitlement i.e. validity of the non disparaging clause. Going beyond the legality of that clause, how could the plaintive quantify the damages caused by one adverse review? The plaintive would have to prove that loses in revenue would have to been caused solely by the review rather than economic conditions. improved competition, and any and all factors. In my opinion this clause could not be realisticly enforced and exhibits an attitude by a "professional" that I would choose not to work with.</p>

<p>Bad reviews, small business = devastating<br>

bad reviews, large corporation = drop in the bucket, comes with the territory.<br>

How many here are small business owners ? Raise your hand......<br>

And how many here have ever had untruthful negative reviews lodged against you by a totally unreasonable client ? If you have been in business for any length of time, you have, and if you haven't, just wait, you will..........</p>

<blockquote>

<p>If they refuse to agree to that, they can go elsewhere. </p>

</blockquote>

<p> <br>

We all, except Mr. Martin, seem to agree that introducing such as clause causes the very "devastating" effects that he wishes to hypothetically avoid and is willing to turn away business from so many good customers. If this model worked, everyone would probably be doing it. Maybe he has more unique circumstances. I don't know. In any event, he asks about where it is enforceable rather than if it is wise.</p>

 

<blockquote>

<p>Third, he prohibition of making disparaging comments in no way ensures fair and honest public feedback. In fact, such a prohibition has a chilling effect on constitutionally guaranteed free speech rights and would limit public comment to positive endorsements</p>

 

</blockquote>

<p>The other three observations are interesting but contracts arranging for one to forgo rights they can exercise are extremely common and enforceable. Indeed, that is frequently the consideration element in such contracts. No government is acting to suppress speech. The 1st Amendment is not going to be relevant because it doesn't apply.</p>

 

<blockquote>

<p>Going beyond the legality of that clause, how could the plaintive quantify the damages caused by one adverse review? The plaintive would have to prove that loses in revenue would have to been caused solely by the review rather than economic conditions. improved competition, and any and all factors.</p>

</blockquote>

<p> <br>

That;s a great argument but one may counter that it is not a damages clause in is merely part of the agreement specifying that if one event happens, another shall also occur. More artful drafting would go out of the way to clarify the clause as such. That too may be challenged but is easier to defend.<br /><br /><br>

Artful drafting to make it appear acceptable to potential customers is more challenging.</p>

<p>They can always damn with faint praise!</p>

If I were told you did that with your clients I would think as a shooter you were a poor performer who was afraid of what

your previous clients would say if they could be honest. There are probably a few sellers on eBay who would like to

prohibit bad reviews, or on Amazon. Seems like a very BAD idea.

<blockquote>

<p>Johh H has such an inflauted sense of self worth. Must be that European background.</p>

</blockquote>

<p> <br>

I don't recall indicating anything relating to my self esteem or that I engage in copyright infringement like I was accused of in another thread. I welcome a debate on the merits of my comments. The resort to posts containing nothing but personal attacks and accusations about me (and entire continents of people) reveals only personal conduct rather then useful information left unconsidered.</p>

<p>Saw this yesterday:</p>

<p>http://news.yahoo.com/woman-gets--3-500-fine-and-bad-credit-score-for-writing-negative-review-of-business-233833012.html</p>

 

<p>A provision saying that a party cannot post a negative review would not be unconscionable, I don't think, as that term is usually applied. I think you could put a provision like that in a contract and possibly enforce it, but I am not convinced that doing so would be a good marketing or business move. And I agree with Michael that just because a small claims court enforces it, that doesn't mean a higher level court will reach the same result. <br>

Perhaps a better provision would be that the client agrees not to post any kind of online review unless specifically requested to do so by the photographer after completion of the contract services. That way, the photographer can cherry pick which clients he wants to post online reviews and reduce his or her risk of a bad review. </p>

<p>People and companies enter into fully enforceable "non-disparagement" contracts everyday in routine legal transactions in the US. Employment agreements, severance agreements, and civil lawsuit settlements often contain such provisions. <br>

Mr. Evans' post confuses "non-disparagement" with the legal claim of "defamation." Libel and slander are defamatory, and truth is an absolute defense to those claims. Thus, a disparaging statement that is also false would be defamatory. <br>

A disparaging statement need not be false. The truth can be disparaging. A non-disparagement agreement would simply try to prevent a person/client from saying or writing much at all about the subject of the contract, whether true or false. </p>