Non-disparagment clause for internet?

[onionsayswhat]

California/NH
I signed up for a resume distribution service.
I paid money but did not get any confirmation my resume had been distributed. I sent notices to the company via their customer support link and also called a telephone number I found - it was hard to find the telephone number as they don't really offer phone support. I expressed the problem verbally and supposedly also via their support email link. I asked for a receipt and confirmation the resume was distributed. I did not get any confirm so I sent another email request and did not hear back again. SO i posted what happened on the bbb website. Now - the company is threatening to sue as they say the tos contain a NON-DISPARAGEMENT clause. I said there was no consideration as the service I paid for was not delivered. The company is claiming they were emailing me all the time and that my email was broken -- but it's not broken and besides- I had also given my telephone number. Can I be successfully sued over this? I live in NH and the company is located in California.

By the way - I don't know if they did distribute the resume or not. but there was never any confirmation despite the fact that the company claims they sent me confirmation emails. They claimed my email was not working - but that is not true - my email works fine but maybe they put the wrong email in? Or maybe I listed it wrong?

 

[justalayman]

Or maybe I listed it wrong?

if you are not certain, then you cannot say they didn't send you emails, at least to the incorrect address you may have given them.



Failure to comply with the terms of your contract would be a breach of contract and yes, you could be sued for that.

I said there was no consideration as the service I paid for was not delivered.

By the way - I don't know if they did distribute the resume or not.

so, which is it?

 

[quincy]

Several companies have included non-disparagement clauses in their contracts. Many are now finding that they are hard to enforce.

Challenges to these clauses have been met with mixed results in breach of contract suits, depending on the facts of disparagement, but at least one company that tried to enforce the contract finally decided to remove the clause from their contracts. It found, not surprisingly, that trying to limit another's right to free expression is not all that easy.

 

[justalayman]

I see a non-disparagement clause as very similar to a non-compete. It is a negotiated term of a contract and is not more restrictive of one's rights than a non-compete would be in the area of a person's life it addresses. The law generally allows one to relinquish some rights they are otherwise afforded. Heck, the act of working itself is an agreed suppression of one's rights. You allow another to control just about every aspect of your life in exchange for money compensation.

Even more closely related would be a non-disclosure agreement. It is an agreed suppression of one's right to free speach as well yet the courts don't have an issue enforcing such an agreement.

On top of everything else, op may be wholly incorrect of his claim. The other party claims they sent emails. Op isn't even certain he provided a correct email address

 

[quincy]

I see a non-disparagement clause as very similar to a non-compete. It is a negotiated term of a contract and is not more restrictive of one's rights than a non-compete would be in the area of a person's life it addresses. The law generally allows one to relinquish some rights they are otherwise afforded. Heck, the act of working itself is an agreed suppression of one's rights. You allow another to control just about every aspect of your life in exchange for money compensation.

Even more closely related would be a non-disclosure agreement. It is an agreed suppression of one's right to free speach as well yet the courts don't have an issue enforcing such an agreement.

On top of everything else, op may be wholly incorrect of his claim. The other party claims they sent emails. Op isn't even certain he provided a correct email address

This is not how courts are seeing many of these agreements but it really depends on the contract and under what circumstances the contract was formed.

Employers are including these non-disparagement clauses in their contracts with some frequency, in large part to prevent online defamation (which has become a major problem and can affect a company's business reputation and earnings). When the non-disparagement clause is connected to a non-disclosure clause or a non-compete clause (often when trade secrets are involved), the clauses have generally held up in court. And in settlement agreements, they have been found enforceable because a person has the option to settle under the terms of the agreement or not.

Where the disputes with these non-disparagement clauses are arising most frequently, however, and where the clauses are not faring so well, are in consumer agreements and terms of services. They have become so problematic in fact, with fines being assessed on those consumers who write about their bad experiences with a company, that California introduced a bill (I am not sure of its current status, although there was a third reading in April) which would make some non-disparagement clauses void and unenforceable.

Here is a link to the California bill and a good discussion of non-disparagement clauses in general: http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_2351-2400/ab_2365_cfa_20140509_113305_asm_floor.html

These controversial clauses were highlighted by a case involving a Utah couple (John Palmer and Jennifer Kulas) and a Michigan-based company KlearGear (although now, after a default judgment was entered against them, KlearGear claims they are based in France not Michigan and were not served properly). You can read about the case at the following National Coalition Against Censorship site: http://ncac.org/palmer-v-kleargear-com/.

Public Citizen represented the Palmers, who sued KlearGear for $75,000 and the removal of derogatory credit report information. KlearGear fined customer John Palmer for "disparaging" KlearGear online (although it was actually his wife Kulas who wrote the negative review). It is an interesting, but disturbing, look at how one company tried to enforce their non-disparagement clause, and ruined a couple's credit in the process.

At any rate, you have several problems with these non-disparagement clauses, including the fact that "disparagement" is generally not defined. Another problem, of course, is the attempt to censor speech. This will always be a challenge.

 

[justalayman]

At any rate, you have several problems with these non-disparagement clauses, including the fact that "disparagement" is generally not defined. Another problem, of course, is the attempt to censor speech. This will always be a challenge.

but in this situation, the OP may be totally incorrect in his claims. If he provided an incorrect email and took no effort to ensure they had a correct email (especially since he did speak with them at least once before coming to the conclusion the company was worthless), his statements may be based on a faulty position. Not only may he be in breach of any agreement, his comments may be outright defamatory as there may be no basis for his claims what so ever.

OP said this:

I said there was no consideration as the service I paid for was not delivered.

but admits to this:

By the way - I don't know if they did distribute the resume or not.

so they sue for defamation rather than the clause in the agreement. Either way OP doesn't seem to be standing on solid ground at the moment.

 

[quincy]

but in this situation, the OP may be totally incorrect in his claims. If he provided an incorrect email and took no effort to ensure they had a correct email (especially since he did speak with them at least once before coming to the conclusion the company was worthless), his statements may be based on a faulty position. Not only may he be in breach of any agreement, his comments may be outright defamatory as there may be no basis for his claims what so ever. ...

Yes, there is always a defamation claim that can be considered IF what is written can be seen as defamatory.

It could be disparagement (and whatever that means) rather than defamation that could create more difficulty for the California-based company.

Disparaging a company in a review can fall under a free expression of opinion, so a company disparaged but not defamed must then look to a contract's non-disparagement clause for relief. And there are recognized problems with these clauses.

From my reading of it, there is not likely to be a successful suit filed against onionsayswhat by the California company over onionsayswhat's report to the Better Business Bureau. But I could be wrong. onionsayswhat could have everything reviewed by an attorney in his area to see better where he stands against a suit, or he could wait to see if he is actually fined or sued before consulting with an attorney.