Tuesday, March 01, 2016

Pet-sitting company in Texas sues consumer after cease-and-desist regarding a "non-disparagement" clause


Here’s another case of a non-disparagement clause being enforced, this time by a pet-sitting company (“Prestigious Pets”) in Texas, which apparently does not prevent such clauses.  (Texas is an easy state in which to litigate about a lot of things, especially patents.)  The story on Consumerist is here.  Apparently the company started with a cease-and-desist demanding that the consumer take down the review.  When the review stayed, the company sued for $6700 for violating a “non-disparagement injunction.”  Some of the language in the contract clause had been adapted from Kleargear.  The consumer had complained about billing practices as well as the actual service.
  
The incident was mentioned on Meredith Vieira today.  There was a view expressed that most people who bother to write reviews at all do it to sound off, so many or most reviews are negative.  (Angie's seems to ask for reviews by email, in an attempt to get satisfied consumers to participate and restore some balance.)  Co-host Lance Bass says he won’t write any bad reviews in 2016.  But he has a beef against the customer service of most airlines – but who doesn’t? Reviews of contractors and retailers are a lot more likely to be negative than consumer reviews of films and media items on Amazon or Netflix (and "the opinion rule" is a lot more likely to override everything when reviewing media anyway.) 

In some states (probably Texas) the breach of contract is what matters;  the "truth" of the consumer's statements is not a defense because the tort is not really "libel".  I wonder what Kitty Kelly would think. 
    
CBS DFW reports the story here. Fox News also has a story

Yelp! says it is removing reviews anyway that generate unusual media coverage  even though under Section 230 it doesn’t have to.  So now Yelp’s own statement can attract controversy.

Do non-disparagement clauses apply to public social media posts (Facebook especially) as well as "review sites"?  Would they apply to personal blogs?  It would sound like it.  

The Senate has passed a law prohibiting non-disparagement clauses, and sent it to the House. Philosophically, many conservatives in Congress are likely to oppose it in the name of protecting small businesses from “attention seekers”.  
  
I do not write reviews of specific service providers on review sites myself.  This doesn’t have the same value to me as blogging about issues.  But I don't recall being shown a non-disparagement contract before, although it could have been in fine print somewhere.  

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