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Question about TOS

A customer agrees to a TOS that states "No reviews, negative or positive, can be posted anywhere for any reason"

Customer has a horrible experience.

Can the artist then sue the customer if such a review was ever posted?

Yes, that's a horrible TOS, I have no idea why anyone would ever agree to it, but should the customer just let it go for fear of being sued or is it a baseless threat.

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Comments

( 39 comments — Leave a comment )
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adzuki
Feb. 4th, 2014 07:12 am (UTC)
So you can't even say you liked the service?
That seems incredibly backwards.
neolucky
Feb. 4th, 2014 07:19 am (UTC)
I suppose if it was something I agreed to, then I'd uphold it on principal alone. But it's kind of a strange thing to agree too.

But, I'd play it safe and respect the wishes of their TOS, if the customer agreed to that in the first place. I do feel in some respects it could be a binding contract but I'm no expert on this - unless the artist breached that contract in some way or did not finish the service. I would not do business with someone who required it.

Edit - Woops meant to reply to OP! Sorry!

Edited at 2014-02-04 07:20 am (UTC)
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(no subject) - neolucky - Feb. 4th, 2014 07:25 am (UTC) - Expand
(no subject) - adzuki - Feb. 4th, 2014 07:22 am (UTC) - Expand
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neolucky
Feb. 4th, 2014 07:21 am (UTC)
Keep in mind we try to keep Advice posts as anonymous as possible =) Please do not elude to who the artist in question is, or the nature of what transpired.
(no subject) - mochacorgi - Feb. 4th, 2014 07:22 am (UTC) - Expand
(no subject) - mochacorgi - Feb. 4th, 2014 07:29 am (UTC) - Expand
(Deleted comment)
exo_formicidae
Feb. 4th, 2014 12:36 pm (UTC)
It would probably be different with a Scam/con. Since the artist would then break the contract first - by not delivering what they are paid for. I think this is more if you get what you pay for, but the experience was still a bad one. Then the artist haven't broken the original agreement and it would be unwise to go against their ToS and post a review.
gatekat
Feb. 4th, 2014 07:24 am (UTC)
There was a court case in the news recently that covered exactly this. I wish I could remember the outcome, or find the link.
ladynerdess
Feb. 4th, 2014 09:33 pm (UTC)
I think I might know what you're talking about. A woman bought from some company (somethin Gear I think), wrote a negative review about them and they trashed her credit score by calling people. I can't remember who they called to do that sort of damage, but it messed with her family enough where they couldn't buy a furnace for winter, and piled on blankets to keep their baby warm. Last I heard they're suing the company, and people were pretty angry about it.
(no subject) - mistresswolf - Feb. 6th, 2014 03:44 am (UTC) - Expand
chronidu
Feb. 4th, 2014 07:45 am (UTC)
Too be honest, without some serious big name lawyers to back it up, I can't see anyone outside of big businesses getting away with a clause like this in court, especially if no slander or libel is taking place.

But I really don't have a definite answer, it's far to huge a grey area in far too many places.
thaily
Feb. 4th, 2014 09:20 am (UTC)
Yeah I'm pretty sure that if large companies with lots of legal power could enforce this, they would. As is I think the best they can do is to get people to sign a contract when they give them hush up money, like after an iPod blows up in someone's face.
(no subject) - starcharmer - Feb. 4th, 2014 03:18 pm (UTC) - Expand
thaily
Feb. 4th, 2014 09:13 am (UTC)
Sounds like a unilateral NDA (non-disclosure agreement). It's usually reserved for things like games that are in BETA; people get to play it, and test it, but don't get to tell anyone so as not to spoil it for future players.
Or, for example, if you're the artist doing illustrations for a book but wouldn't be allowed to tell people what it was about.
That sort of thing.

For an individual artist to try and ban reviews sounds shady and unenforceable, unless they are capable and willing to take you to court, which just isn't likely.
celestinaketzia
Feb. 4th, 2014 11:33 am (UTC)
These kind of things have happened before.

Whether or not it will hold up in court seems to be new territory. At least in the US that is. The consensus seems to be that, no, you can't keep people from posting reviews online.
familliaraver
Feb. 4th, 2014 03:05 pm (UTC)
Yea that's kind of what sparked my interest to ask; the yelp case and the kleargear case.

In both cases they haven't been decided yet. It seems that enforcing the rule caused more hassle than just letting the review be posted.
unclekage
Feb. 4th, 2014 11:51 am (UTC)
So don't post a review.

Post an opinion. You can never sign away your rights to express your opinion.
kitsumi
Feb. 4th, 2014 02:17 pm (UTC)
I imagine if the TOS says do not post anywhere, that doesn't mean you can't share reviews privately or by word of mouth. I feel like this falls into that fuzzy grey area of freedom of speech, after all it is your personal experience/opinion of their services.
puppetmaker40
Feb. 4th, 2014 02:39 pm (UTC)
Depends on the countries and I would bet dollars to donuts that if a bad review was posted, they would scream and shout at the customer and that's about it. Now that can get very tiring very fast.

If they get a lawyer into it, I would first make sure it is a real lawyer and not some Internet made up character who is RPGing a lawyer. Which happened to a friend recently.

If the customer and the maker are in the same country then one set of rules apply. If in different countries, then a totally other set applies.

The maker is hedging that if they say that there can be no reviews either positive or negative they can get it to stick because they can say they are being even handed since saying no negative reviews can be shown as bias.

Personally, depending on how much time I want to spend with the backlash since the maker seems to be a little hair trigger, I would post a review in my personal Internet space (blog, Facebook, Interspace) since that's my space and I can say what I want there.

amocin
Feb. 4th, 2014 03:43 pm (UTC)
Its a bit vague on what exactly went wrong that something needs to be 'reviewed' but if the commissioner is unhappy with the artwork they paid for, such as glaring anatomy errors, or lets say.. your character looks like a canine when it is feline.. I see it as extremely shady that you wouldnt be able to say anything so these errors could be fixed.

I dont think the law works that way. If you paid for a product, and they did not deliver the product, you should be able to say something. I dont think you can sign this with a contractor company, have them come and make you a deck, and deck, and what they really gave you is steps.. then I dont think they are covered by that agreement.
loganberrybunny
Feb. 4th, 2014 04:00 pm (UTC)
I think that if I were that customer, I'd be sorely tempted to post a dry-as-dust, utterly factual, scrupulously neutral account of what happened. That would be neither a review nor "negative or positive".

It would also seem professionally self-harming for the artist to sue, since I have a hard time believing that the court of public opinion would be on their side. They'd probably end up with a worse reputation (and so less work) than when they started.
skanrashke
Feb. 4th, 2014 04:36 pm (UTC)
If the customer agreed to terms of service, they're obligated to obey them regardless of the outcome. This sounds like yet another case of "Should've read dem ToS more carefully".
sableantelope
Feb. 5th, 2014 05:42 am (UTC)
Although a customer isn't obligated to obey TOS conditions that are considered legally unreasonable(which has a whole bunch of bits and pieces like unfair terms and etc., I'm in a common law country so it's even a little more tricky to hammer down exactly).

That's part of why a seller can't just say 'no refunds' in their TOS and try and enforce that.

I'd be tempted to say that in a British Commonwealth common law country, the seller forbidding the buyer from posting any review preemptively as part of the agreement would be considered an unfair term, as 'contrary to good faith'. There's a risk the seller would not do the same quality of work on an un-reviewable product as they would on one the consumer was free to review.

Honestly, I think a buyer would be in their right to post a review regardless of whether the seller states that or not. Unfair terms comes into play when trying to lay blame for a breach, so if the seller tried to claim the buyer breached when they posted the review they'd be likely to loose that case because their TOS was contrary to good faith. It'd be an expensive legal mess that the seller probably wouldn't win, and if they manage to have things side their way that the customer breached posting the review, then they'd have to try and prove they actually were damaged by the review, that it caused them to loss business or they might just walk out with the ol' $1 punitive + court costs ruling. It'd be an interesting case though!

The maker/artist would probably end up just having to blacklist any customer that posted a review and not do business with them again. That's probably the only practical way they could try and "enforce" this.

But in a moral, common sense way you are totally right that the customer should read the TOS and if something like this, legally enforceable in court or not, in the TOS sends up red flags/bad vibes just take their money and nope on out of there.

And the seller should really just not waste their time and damage their good will having an unreasonable TOS clause to begin with in.

(no subject) - skanrashke - Feb. 5th, 2014 05:20 pm (UTC) - Expand
(no subject) - sableantelope - Feb. 6th, 2014 02:24 am (UTC) - Expand
(no subject) - skanrashke - Feb. 6th, 2014 02:26 am (UTC) - Expand
(no subject) - sableantelope - Feb. 6th, 2014 07:42 am (UTC) - Expand
(no subject) - sableantelope - Feb. 6th, 2014 07:50 am (UTC) - Expand
(no subject) - skanrashke - Feb. 6th, 2014 04:19 pm (UTC) - Expand
(no subject) - sableantelope - Feb. 6th, 2014 10:41 pm (UTC) - Expand
leaf_kunoichi
Feb. 4th, 2014 06:18 pm (UTC)
In the US, people have been sued for leaving reviews online. I have seen companies use defamation of character and breach of contract to sue. Some have been successful and some have not.
yarbro
Feb. 5th, 2014 12:18 am (UTC)
"have seen companies use defamation of character and breach of contract."

Usually to win in a case of "defamation of character" have pretty hard evidence that shows the customer, without a single doubt, done it personally. Kind of like "Emotional damage" cases- they are hard to win.
(no subject) - sableantelope - Feb. 5th, 2014 05:53 am (UTC) - Expand
bazeel_pooka
Feb. 4th, 2014 10:04 pm (UTC)
I would highly advise against dealing with such an individual, however, if choosing to do so:

I sincerely doubt that they could back up that claim in court, especially without a ton of legal fine print to back up what a 'review' is.

If they breached their contract for any reason, then the entire document is null and void, unless there are provisions speaking specifically to that effect, in the proper language, etc.

I wouldn't allow that as a public TOS on FA, I can assure you of that, unless it was for a VERY good reason. It positively REEKS of scam.
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