Shore Dreams Vacation Rentals Sees KlearGear Catastrophe, Says "I Gotta Get Me Some Of That"

Law

The clause at issue in this post has been removed. See last update.

Most people who have read about KlearGear's repulsive non-disparagement clause are shocked and appalled. The fundamental concept — that a company would demand that customers promise not to criticize it as the price of doing business — strikes us as thuggish and un-American.

But KlearGear is not alone in foisting such a clause on its customers.

Meet Shore Dreams Vacation Rentals, which offers rentals in Florida. Shore Dreams has a thoroughly sleazy non-disparagement clause:

Certain websites allow reviews that are unchecked with regard to reasonable sentiment. Guest agrees that even minor unreasonable negative sentiment can unjustly cause damages to owner's future business. Therefore, Guest accepts and is hereby notified that Shore Dreams Vacation Rentals, LLC does not participate in reviews from websites that are not owned or controlled by Shore Dreams Vacation Rentals, LLC and the business transaction between all parties should remain private. This Paragraph is a material provision this agreement. All communications related to this transaction shall remain private. Specifically, Guest and invitees agree not to criticize, make any statement which disparages or post any review on any website unless requested in writing by the Shore Dreams Vacation Rentals, LLC or agent. If any review is posted by Guest or invitee thereof, and found to contain unreasonable negative sentiment in the sole opinion of the Shore Dreams Vacation Rentals, LLC and is not removed within 72 hours (the Review), Guest agrees that a copy of this rental agreement shall serve as Guest's full authorization to request and oblige the third party or website hosting or displaying the Review to remove it promptly upon request by Shore Dreams Vacation Rentals, LLC. Failure to remove the Review will be considered a breach of this Agreement, and Shore Dreams Vacation Rentals, LLC will consider this act to have irreparably harmed by loss of business and goodwill due to violation of this provision. In this event, Shore Dreams Vacation Rentals, LLC will immediately charge Guest a fine of $500 upon sent email notice, which is refundable at compliance of this agreement, and seek damages of up to $10,000 from Guest and Guest agrees to pay all such damages requested by Shore Dreams Vacation Rentals, LLC upon written demand. Guest will pay any additional legal fees necessary to enforce demand should Guest not comply.

So: that means that (1) you can't criticize Shore Dreams without their written permission, (2) if you do you agree in advance that the criticism must be taken down upon their demand, if they decide they feel it is "unreasonable," (3) if you do you owe them a fine of $500, and (4) they can sue and you have to pay them up to $10,000 and their legal fees.

Apparently CNN did a story about this, which I haven't been able to find online. Shore Dreams reacted angrily and rather dishonestly:

The recent story as reported by Pamela Brown on CNN does not reflect our policy accurately and as we explained to Ms. Brown, we strive to encourage our guests to communicate any issues or requests while they are staying with us. In the past we have had a some guests try to demand compensation or refunds after departure by threatening a bad review, while not providing an opportunity for management or the owners to fix any issues while they were in the unit. We don't participate in any of these threats that are unreasonable and untruthful, therefore our policy was implemented to include potential legal fees in the event of a libel lawsuit and any fines reported were grossly exaggerated by CNN. We have many reviews on our website and vacation rental listing sites both positive as well as negative and encourage feedback from all of our guests via online surveys, our mobile app and vacation rental listing reviews. Again, we appreciate your concerns and hope you understand our side of the story as well.

That's their explanation of the non-disparagement clause. But that's not what the non-disparagement clause says. It doesn't just provide for attorney fees in the case of a libel lawsuit — it also has a penalty provision and a substantive promise not to criticize Shore Dreams without their permission. Oddly Shore Dreams posts this explanation right next to the non-disparagement clause that it misrepresents.

I haven't found any indications that Shore Dreams has used its clause the way KlearGear did attack the credit score of a critic. But the potential to do so is there.

Why would you do business with a company that demands that you refrain from criticizing it except through its chosen channels?

Why would you do business with a company that thinks you should pay a $500 fine if you criticize it?

Why would you do business with a company that thinks you should agree in writing that any criticism of it that it doesn't control should be taken down?

Why would you do business with a company that hides ridiculously one-sided non-disparagement clauses in its terms and conditions?

If a company feels entitled to be free of criticism it doesn't control, do you think you can trust that company to provide quality services and treat you fairly and honestly as a customer?

If a company says "you can't criticize us unless we give you permission, and you have to pay a fine if you do, and agree in advance to take down any reviews we don't like," does that company share your values? Does it have values that are worthy of respect? How do you feel about a company like that getting your money?

So. What can you do about companies like this? You could read the terms and conditions of the agreements you accept when you do business with companies. Unfortunately, many people find that too onerous, particularly when the offending legal jargon is buried in lengthy boilerplate. Here's another thing you can do: when a company like KlearGear or Shore Dreams Vacation Rentals hides a thoroughly sleazy and despicable non-disparagement clause it its boilerplate, you can help spread the word about it to warn people. Shore Dreams Vacation Rentals and the people behind it should face the natural and probable consequences of their behavior: contempt and infamy.

Hat tip to Simon.

Edited to add: Via Adam Steinbaugh, here's Christo Properties in Seattle, another home-rental place with a sleazy non-disparagement clause.

NON-DISPARAGEMENT

Tenant agrees not to post any negative reviews referencing Christo or Christo rental property nor use the threat of negative reviews as a tool for negotiation and/or extortion. The definition of negative shall be determined solely by Christo. If tenant does post a negative review of Christo or Christo rental property, tenant shall have 48 hours subsequent to notification by Christo to remove the review. Failure to timely remove the negative review shall result in tenant being liable to Christo for $178.14 per day the review is viewable to the public from the date of notification. Tenant agrees that Christo may charge tenant’s on-file credit card for any fees in this clause.

Because Christo believes that honest reviews are an important part of the vacation rental experience, If contested, tenant may post any type of unbiased internet review after being found true and of fact by any court of competent jurisdiction covered within the geographical area of this agreement.

How generous of Christo to say that Americans may express themselves after a court says they can.

Apparently this is a thing now with some vacation rentals. Seems like a good way to address it would be to start a "bad citizens running bad businesses" list showing the places that use such clauses.

Edited to add: Shore Dreams has removed the non-disparagement clause. In an email to me that she asked me to publish, the manager said this:

Hi Ken, I wanted to email you and let you know that I appreciate your forum as an important function of free speech and recognize that our clause was very restrictive; however it is a very common inclusion in agreements these days, be it right or wrong. Meanwhile I have removed the clause from our rental agreement. I am not an attorney, but a business owner and real estate investor and have worked had to make my business grow in a down real estate market as well as the economic effects of the oil spill. I run the company by myself, which is mainly due to the hardships with real estate and my need to climb out of the economic hole I was in. CNN made us look awful and like we are this huge BIG BUSINESS that doesn’t care, but we do. I work 7 days a week to make this work and have many happy guests over 10 years and over 7000 reservations. We have great approval ratings and reviews on Tripadvisor, Flipkey, VRBO, HomeAway and an A+ rating on the BBB. We are one of the best pet friendly rental companies in the Southeast, which is hard to find. While your forum is great, the emails I am getting are full of profanity and degrading comments. I hope that you will update your column and let them know that we are sorry and have removed the clause and encourage reviews and feedback always. Thanks again for your consideration in advance. Renata, Owner SDVR

Though it was a bad decision to include the clause, I think they've done the right thing by removing it, and should get credit for responding to criticism. We should continue to identify and criticize lawyers and others who encourage such clauses, who ultimately may be harming the people they advise.

Last 5 posts by Ken White

71 Comments

70 Comments

  1. Kirk Taylor  •  Dec 1, 2013 @9:14 am

    Does posting the explanation claiming that it is only used for libel make that a legally binding explanation? In other words, is the explanation of the terms and conditions within the terms and conditions now a part of the terms and conditions?

  2. Jason  •  Dec 1, 2013 @9:14 am

    Internet ….. Destroy.

    That's a good boy!!

  3. Kirk Taylor  •  Dec 1, 2013 @9:15 am

    The Hat Tip to Simon appears to go nowhere…

  4. hymie!  •  Dec 1, 2013 @9:22 am

    Why would you do business with a company that thinks you should pay a $500 fine if you criticize it?

    Because nobody actually reads through the entire Terms of Service.

  5. TC  •  Dec 1, 2013 @9:30 am

    I like this one as well:

    GUEST assures Shore Dreams Vacation Rentals, LLC that any tenant who violates any of the terms of this Agreement shall be immediately denied occupancy and shall remedy any damages or other expenses, which are caused by the tenant and/or the tenant's guest(s). At any time before, during, or after your stay, your information may be shared with http://www.guestchecker.com.

    So what can I do if Shore Dreams submits inaccurate/defamatory info about me to guestchecker?

  6. Katherine  •  Dec 1, 2013 @9:34 am
  7. A_Lurker  •  Dec 1, 2013 @9:37 am

    When does a company's failure to fulfill a contract void its terms and conditions? I understand the complaints with KlearGear was its failure to fulfill orders. My non legal of contract law is if the vendor fails to fulfill the contract they are in breach and there legal remedies available.

    Also, I have read, possibly incorrectly, that many T&C's that stray from a very narrow generic boilerplate are unenforceable because there is no ability for the purchaser to modify them before the sale. Is this also correct?

  8. rsteinmetz70112  •  Dec 1, 2013 @10:28 am

    It appears that the "piece" was substantially about KlearGear and included Shore Dreams as another example.

    As a non-lawyer I wonder if the "explanation" serves to modify the terms of the rental agreement, as it on the same webpage, although it is carefully worded so that their clause "includes" libel, but it actually says much more than that.
    I am tempted to complain to the Florida Department of Business and Professional Regulation as I believe that rental agents must be licensed and Shore Dreams Vacation Rentals, LLC appears not to be listed. Interesting I found one number listed as a 404 Area Code, that is Atlanta GA.

  9. En Passant  •  Dec 1, 2013 @11:31 am

    Shore Dreams Vacation Rentals and the people behind it should face the natural and probable consequences of their behavior: contempt and infamy.

    Don't forget ridicule, mockery and laughing in their face.

  10. David C  •  Dec 1, 2013 @11:32 am

    Guest agrees that a copy of this rental agreement shall serve as Guest's full authorization to request and oblige the third party or website hosting or displaying the Review to remove it promptly upon request by Shore Dreams Vacation Rentals, LLC

    Except that the third party is under no obligation to remove the post, even if all parties ask them to.

    The recent story as reported by Pamela Brown on CNN does not reflect our policy accurately

    It may not reflect your policy, but it does reflect the contract that you make your customers sign. If it's against your policy to enforce your contract, change it.

  11. Simon  •  Dec 1, 2013 @11:55 am

    Googling around, we discovered the non-disparagement clause is a disturbing new trend in property management: http://seattletimes.com/text/2018008030.html

  12. David C  •  Dec 1, 2013 @11:58 am

    So: that means that (1) you can't criticize Shore Dreams without their written permission,

    If you read carefully, you will see that it says you cannot post ANY review without their written permission. Not just a negative one.

  13. Mike B  •  Dec 1, 2013 @12:44 pm

    so I feel myself inclined to ask, as others have, what exactly is the legality of this? I know that companies include clauses in their contracts all the time that are either unenforceable on their face or at the very least unenforceable as a side effect of some other issue, such as a violation of some contract or business law that nullifies the contract.

    Strictly speaking, if I were to get a rental from Shore Dreams Vacation Rentals, and was unhappy with it, and wrote a negative review as such, are their remedies in the contract actually legally valid? Can you actually sign away your right to criticize in the same manner that you can sign away your right to litigate via an arbitration clause?

  14. Rhonda Lea Kirk Fries  •  Dec 1, 2013 @1:04 pm

    @Simon

    Not just vacation rentals, I think. I've seen them in home builders' contracts. (I hasten to add that I haven't read a home builders' contract in a long time, so I can't say if it's an ongoing practice.)

  15. Wandering Teacake  •  Dec 1, 2013 @1:12 pm

    I've had another company brought to my attention that is doing the same thing, this time in the UK: Merthyr Motor Auctions http://www.auctioneers.co.uk/information/terms.php.

  16. Hal_10000  •  Dec 1, 2013 @1:26 pm

    Why would you do business with a company that thinks you should pay a $500 fine if you criticize it?

    Because nobody actually reads through the entire Terms of Service.

    This. Very few people read through an entire TOS. If I recall correctly, there have been some ruling in the courts that recognize this fact and apply reason to the terms of a TOS. I think we may need some legal precedent that TOS's are not a blank check for whatever.

  17. Dan Weber  •  Dec 1, 2013 @1:31 pm

    Shore Dreams Vacation Rentals, LLC does not participate in reviews from websites that are not owned or controlled by Shore Dreams Vacation Rentals, LLC

    They should have said they "don't participate" in news stories on CNN and fined CNN.

  18. Hal_10000  •  Dec 1, 2013 @1:42 pm

    These guys are increasingly reminding of the Insurance Agent Sketch from Monty Python. "In your policy, it clearly states that any claim you make will never be paid." I'm wondering if Shore Dreams has a clause in their agreement about filling someone's mouth in with cement.

  19. Adam Steinbaugh  •  Dec 1, 2013 @2:04 pm

    Heh. By *visiting* ChefDepot.com, you agree not to criticize them. Hey ChefDepot.com, your website design sucks. I will waive personal service of your breach of contract claim against me.

    And if you want to travel to Thailand to get a certificate to teach English overseas, you'd better not say it was less than great or it'll cost you 3,500 pounds — almost twice as much as their most expensive program.

    Criticism of Cronus Corporation's competitive sports…. somethings (what they do, I can't tell): $5,000.

    Not happy that Visnova USA's relocation and real estate services weren't up to your satisfaction? It'll cost you $3,500 to criticize them — per a contract you agreed to when you visited their site (which sucks, and I make them the same offer I made ChefDepot.com above.)

    Unhappy that the date you got through "Single Gourmet" of South Florida didn't go very well? Don't say anything negative unless you want to cough up $3,500.

  20. JDM  •  Dec 1, 2013 @2:10 pm

    Why you call out the fact that CNN has criticized you on your website if the reference turns out to be only a minor reference in the middle of an (unsearchable) video about someone else? It seems much better to just let sleeping dogs lie.

    What is the Streisand Effect when you affirmatively point it out to your customers? Self-Streisand? Streisandicide? We need a word for this extreme case of stupid.

  21. Harry Johnston  •  Dec 1, 2013 @3:23 pm

    @JDM: gotta go with Streisandicide. Brilliant.

  22. Sean C  •  Dec 1, 2013 @3:29 pm

    Hypothetical: Vacationers book and pay for a stay at a resort, buy airline tickets, take time off from work, fly to the resort and are presented with these terms for the first time as a condition of check-in. What options are available to the vacationers?

  23. Michael Donnelly  •  Dec 1, 2013 @3:38 pm

    I am shocked, SHOCKED, to find unconscionable terms buried deep in a contract of adhesion that will be litigated in favor of the drafting party.

  24. Marconi Darwin  •  Dec 1, 2013 @3:41 pm

    Get aliases through made up user names (multiple of 'em) on multiple free e-mail accounts and then disparage them anyway.

  25. BTCG  •  Dec 1, 2013 @3:58 pm

    @Marconi Darwin. To which I would add: explain that the bad review is done with an alias, point to the non-disparagement clause, and ask the same questions as Ken does in the main article, in your own words, of course. The bad review might just be chalked up to sour grapes, whereas the NDC part will uncover the true 'F.U.' nature of the company owners.

  26. Jason  •  Dec 1, 2013 @4:17 pm

    Maybe prentive strikes are in order. Perhaps people who aren't and never will be customers of these companies can write scathing bad reviews on review sites.

  27. Laura  •  Dec 1, 2013 @6:01 pm

    Is there something special about the number 3500? I've seen six examples so far of companies listing specific monetary values (KlearGear, Shore Dreams, and four from Adam Steinbaugh), and four of those six are 3500 (dollars or pounds).

  28. NI  •  Dec 1, 2013 @7:20 pm

    I agree that terms of service that forbid criticism are repulsive, but are they any worse than terms of service that say "you can't sue us no matter what"? If I had to pick, I'd rather give up my right to free speech than my access to the courts. Yet "you can't sue us" contracts of adhesion have existed for years, and, as best as I can tell, are generally enforced in most jurisdictions.

  29. OrderoftheQuaff  •  Dec 1, 2013 @7:50 pm

    God I hate these cockroaches on two legs. Shine your brightest light on them and watch them scuttle, and if you ever get personally involved with one, spray him with Raid.

    Every savvy businessperson knows that you can avoid negative reviews on review sites by buying advertising on the site, then they'll take care of you.

  30. gramps  •  Dec 1, 2013 @8:42 pm

    From the agreemen: " Specifically, Guest and invitees agree not to criticize, make any statement which disparages or post any review on any website unless requested in writing by the Shore Dreams Vacation Rentals, LLC or agent. "

    How is it possible for SDVR to include in this "non-disparagement" agreement language that binds "invitees"? I am assuming they mean persons that the signatory might invite to visit in the vacation rental.

    Those entertaining Jason's approach (above) might limit their complaining posts to the questionable nature of the agreement that they have just recently learned about. Unless one has rented and had an experience worthy of complaint, truthfulness might become an issue…

    OT- does that push-pin doohickey really work? Is there some kind of special incantation needed? It could be a new trick beyond the range of an old dog.

  31. rsteinmetz70112  •  Dec 1, 2013 @8:43 pm

    Posting negative reviews of theri terms on widely read site ( Trip Advisor) would bee effective. I could for example say I refused ot rent form them because of their unconscionable terms.

  32. ShelbyC  •  Dec 1, 2013 @9:01 pm

    Why shouldn't a company be able to contract with customers not to disparage it? If, by becoming a customer of a company, I can cost it $X by posting a negative review, deserved or not, that gives me the ability to extract something less than $X from the company. A company would certainly want me to give up that ability before I become a customer.

  33. Smurfico  •  Dec 1, 2013 @9:53 pm

    Shelby, honest reviews of a company provide a metric for potential customers to use in choosing where to spend their money. They also serve as a way for companies to gauge how well they are meeting their customer's needs. There are (some) legal mechanisms in place to prevent false negative reviews, for example threatening to post a negative undeserved review if you are not paid off would be called extortion.

    If an employer wants me to sign a non-disclosure agreement as a condition of employment they will have to compensate me financially in order to buy my silence. Most people would not willingly accept that condition as a requirement for the purchase of a good or service.

  34. Sami  •  Dec 1, 2013 @10:02 pm

    Is that kind of contract language legal, though?

    I don't know about America, and I know that American consumer protection law is a lot weaker than Australia's anyway, but here, it doesn't matter if a company puts that kind of bullshit in a contract, that doesn't make it enforcable.

  35. AlphaCentauri  •  Dec 1, 2013 @10:25 pm

    Even if it isn't enforceable, just defending yourself from a lawsuit is expensive. The US doesn't make the loser pay court costs except under extraordinary circumstances. I would avoid a company with that sort of language in their TOS.

  36. Felix  •  Dec 1, 2013 @10:40 pm

    1. Post a negative-negative review: "It would be unwise of me to say the beds were made with dirty sheets. It would be contrary of the ToS to say that the food had green mold. It would be to my financial disadvantage to say that the water was full of rust."

    2. I suspect that because they have your credit card info on file, they could simply charge you the $500 or $3500 or whatever, and then make you try to get it back, either in small claims court or by getting the cc bank to do a chargeback. The solution would be to use a low limit credit card, or one of those throwaway temporary numbers some banks hand out, although that might not work if you have to present the card in person when you check in.

  37. David C  •  Dec 1, 2013 @10:49 pm

    Why shouldn't a company be able to contract with customers not to disparage it?

    Because some companies need disparaging. It is not in the public interest for all transactions to remain secret. The economy works better with knowledge.

    Besides, when I come home from vacation, if my friends ask how it went, it's not reasonable for me to not be able to answer them. I can perhaps stomach that sometimes I'm not allowed to describe what happened at work. It's utterly ridiculous to not be able to describe what happened on my vacation.

    If, by becoming a customer of a company, I can cost it $X by posting a negative review, deserved or not, that gives me the ability to extract something less than $X from the company.

    If people are willing to extort money from you by threatening to post negative things about you, they wouldn't even have to become a customer (and therefore agree to your terms) to do so. In either case, if they post lies you can sue them for defamation. If they post the truth and that hurts you… then too bad for you.

  38. Chèvres Puantes  •  Dec 2, 2013 @12:11 am

    It all began as my wife Ellen and I tried to check in at Trout Point Lodge in the remote Nova Scotia woods. We had reserved lodging for four nights, but at the front desk we were told we would not be allowed to check in unless we signed a legalistic “Registration Card” that gave up our right to publish (or, perhaps, even talk about) our own opinions or accounts of the place.

    As outlandish as it seems, Trout Point’s owners, all Americans from the New Orleans area, bluntly insist that:

    “…all publications, writings, etc. via the Internet or in any other form whose subject is the result of a stay or other experience with [Trout Point Lodge] is the exclusive intellectual property of TPL and its owners…” and “prior written permission to publish, post etc. is required….”

    In brief conversations with one owner, identified by his staff as Charles Leary, we were repeatedly told, “I have the right to control my own publicity.” This is certainly half true (owners should be able to control their own PR releases and advertising), but no merchant can control what his customers say about him or his enterprise. When we asked Leary if he didn’t have an obligation to warn his customers in advance about his novel policy, he replied sharply, “No. I don’t have to warn anybody.”

    This last was delivered through the rolled-down window of a Range Rover he was driving as we were passing him on the inn’s dirt road. He was arriving; we were leaving, having declined to sign his agreement. As we pulled away, he called out, “Well, sue me then!” This was an odd invitation from someone in the hospitality business,

    http://www.postadvertising.com/2011/08/which-5-star-resort-wants-to-censor-your-comments/

  39. OrderoftheQuaff  •  Dec 2, 2013 @12:25 am

    Little thing called liberty, Shelby. Not corporations or even government are supposed to be able to muzzle citizens here in my country, because freedom of speech and access to courts are the socially favored, non-violent means of redress of grievances, and once they are removed, all that is left are violent means, or taking it up the culo. Which would you choose?

  40. Anony Mouse  •  Dec 2, 2013 @3:16 am

    Putting on my Devil's Advocate cap…

    Besides, when I come home from vacation, if my friends ask how it went, it's not reasonable for me to not be able to answer them.

    They're not preventing that, actually. You can tell everyone you know about how horrible the trip was and that it was all the fault of the rental agency without violating the T&C.

    What they're prohibiting is online reviews. Hell, you could probably get away with a (non-public) Facebook post talking about how much they sucked, but if you go on Yelp or whatever and post a bad review, then they'll come after you.

    What's happening here is actually vaguely similar to the whole Napster thing. Companies don't like you telling your friends that they sucked, but they won't come after you. Likewise, the RIAA didn't like you copying a tape and giving it to a friend, but they didn't come after you. With the internet, though, you aren't telling one person about a terrible night (or giving one person a pirated album), you're telling (giving to) hundreds, thousands, or potentially millions.

    Furthermore, if I tell my brother that Shore Dreams is horrible, they're probably not out anything, as it's unlikely he would have given them his business anyway. A bad review online, however, is pretty much only going to be seen by people who are actively interested in being potential customers, thus creating a huge potential loss of revenue.

    All that being said, the correct way to avoid bad reviews is to give people no reason to complain, as opposed to strapping on the jackboots and trampling all over personal liberty. Besides, even companies that are utterly perfect will get the occasional bad review because some people are assholes. But they have enough good reviews to more than balance out the malcontents.

    It's the companies that have nothing aside from strong-arm tactics that need to worry.

  41. Clark  •  Dec 2, 2013 @3:55 am

    Ken blogged:

    Seems like a good way to address it would be to start a "bad citizens running bad businesses" list showing the places that use such clauses.

    I love the fight-speech-with-more-speech idea.

    I mean, I also support beatings, but one step at a time.

  42. Spacemanmatt  •  Dec 2, 2013 @4:01 am

    @Anony Mouse

    Doesn't the RIAA's post-Napster tactics of suing internet radio stations and individuals and lobbying for a 3-strike ISP termination policy belie the premise that Shore Dreams' ToS is a paper tiger?

    Seems to me, that the RIAA parallel is more reason to be concerned, not less.

  43. That Anonymous Coward  •  Dec 2, 2013 @4:01 am

    The problem is the entitlement.

    Some people in the world will complain, not about anything real, but in an attempt to get it cheaper.
    Rather than handle this sort of issue like grown up, they make it 'illegal' for anyone to complain (or give a less than 4 star review).
    They are entitled to have glowing reviews and have the ability to even reject real complaints as just being people out to rob them.
    (**AA's business model)

    They live in this imaginary land where any bad review costs them money. That even if the building collapsed on you, because they didn't have it inspected after an accident, you are not allowed to mention that… because it might hurt business.

    The simple fact that this rental place reserves its own right to report you to a guest review site – before, during, after – your stay shows a deep disconnect. How dare you consider rating our rental less than perfect! You were difficult to answer questions for online so I'm making others aware what a nightmare client you were.

    It appears they spend more time trying to maintain the illusion of good service than actually providing it.

    One might even recall there was a company providing forms sorta like this to Doctors allowing them to claim copyright on any review and remove them. After the bright lights shone on them, gee business went down and the forms retreated. People were concerned about a provider who was more focused on stopping bad reviews than providing good care.

  44. RandomStranger  •  Dec 2, 2013 @4:02 am

    Specifically, Guest and invitees agree not to criticize, make any statement which disparages or post any review on any website

    Note that the agreement to neither criticize nor make any disparaging statement does not mention publishing those comments online, the 'post review on any website' is a separate clause of the same sentence. There is lots of surrounding text justifying this in terms of online review, but the actual rights they are claiming are much broader.

  45. Clark  •  Dec 2, 2013 @4:03 am

    @ShelbyC

    Why shouldn't a company be able to contract with customers not to disparage it? If, by becoming a customer of a company, I can cost it $X by posting a negative review, deserved or not, that gives me the ability to extract something less than $X from the company. A company would certainly want me to give up that ability before I become a customer.

    @Smurfico:

    Shelby, honest reviews of a company provide a metric for potential customers to use in choosing where to spend their money.

    Smurfico,

    I don't doubt that ShelbyC understands the utility of honest reviews.

    He's not asking a question about public policy; he's asking a question about freedom of contract.

    IANAL, but my understanding is that non-disparagement clauses are, generally speaking, entirely valid, both legally and ethically.

    The problem (both legally and ethically) arises when the contract provisions are outrageous and hidden in EULAs.

    If I pay you $50,000 for to audit my firm, and I know ahead of time that there may very well be improprieties (that's why I want my firm audited ; I need to see how much the last bookkeeper stole from me), it is quite reasonable to put in a privacy clause, a non-disparagement clause, etc., with penalties of $1k or even $10k or $20k – especially if we spend a day hammering out the contract.

    If I sell you a $20 mouse-pad, it is entirely evil to put a $3k penalty for honest online reviews in the I-never-read-that-click-agreement.

    Now, if you're asking me whether it should be legal in a libertarian anarchy to have evil trap-door clauses, I'd say yes. Good luck getting a legal services firm to enforce them (because no sane legal services firm would want to stake its reputation on such an evil and stupid contract).

    …but if you're asking an actual lawyer as to whether such a clause is enforceable under government law in 2013, I'm pretty sure the answer is now.

  46. JWH  •  Dec 2, 2013 @6:54 am

    How many of these non-disparagement clauses are unenforceable penalty clauses?

  47. David C  •  Dec 2, 2013 @7:47 am
    Besides, when I come home from vacation, if my friends ask how it went, it's not reasonable for me to not be able to answer them.

    They're not preventing that, actually. You can tell everyone you know about how horrible the trip was and that it was all the fault of the rental agency without violating the T&C.

    That's not the way I read it.

    …the business transaction between all parties should remain private. This Paragraph is a material provision this agreement. All communications related to this transaction shall remain private. Specifically, Guest and invitees agree not to criticize, make any statement which disparages or post any review on any website unless requested in writing by the Shore Dreams Vacation Rentals, LLC or agent.

    There may be some ambiguity about whether the "on any website" qualifier applies to only the "post any review" (which is how I originally read it) or also the "agree not to criticize" and "make any statement which disparages" clauses. And either way, it still says that the business transaction and all related communications must remain private. However, the listed fines only apply to websites. So I guess they'd have to take you to court instead of directly charging your credit card if you violated that one.

    @Clark:

    Good luck getting a legal services firm to enforce them (because no sane legal services firm would want to stake its reputation on such an evil and stupid contract).

    I think you're being a bit delusional here. When was the last time a major corporation had trouble securing counsel to try to enforce a dubious contract? And even if they can't find outside help, there's always the in-house counsel, who pretty much would have to work on it or resign. (Yeah, OK, a small rental company is not a "major corporation" and likely doesn't have teams of in-house lawyers, but I'm speaking generally here- and they could well have ONE lawyer, which is all it would take against the average Joe who has zero.)

    I'm pretty sure the answer is now.

    That was supposed to be "no", right?

  48. Michael Donnelly  •  Dec 2, 2013 @8:36 am

    Honestly, I do think a dedicated customer could fight this on the terms being unconscionable. Every state has a slightly different definition, I believe, but I reckon most of them would find a voluntary abridgement of First Amendment rights hidden within a rental agreement to be pretty much the definition of "unconscionable". Especially when it's clearly a contract of adhesion.

    Of course, fighting at that level would require a good deal of time and money. We all know the rest of that train of thought.

  49. Mike  •  Dec 2, 2013 @8:52 am

    Now, if you're asking me whether it should be legal in a libertarian anarchy to have evil trap-door clauses, I'd say yes. Good luck getting a legal services firm to enforce them (because no sane legal services firm would want to stake its reputation on such an evil and stupid contract).

    hahaha good one.

  50. Dan  •  Dec 2, 2013 @9:45 am

    As a pup of a system administrator, when I or a user encountered a problem due to any one of the "quirks" of various Microsoft operating systems, I used to dismiss it with a statement of "Well, you've got to love Microsoft. It's in the licensing agreement." I later learned that Microsoft does indeed have a nondisparigment clause in their EULA, similar to the above, though without the draconian self-executing penalty clause (I believe the restriction was that you would forfeit your right to continue to use that purchased license ).

    Would a reasonable clause be something on the order of "If you choose to publish a bad review of your transaction with us, you waive any implied or statutory privacy rights you may have (excepting credit card numbers or other non-public, personally identifyable data) with respect to our respnse to said review or comment, including what a portion of equine anatomy you were to our employees and staff who were already bending policy in order to attempt to accomodate your increasingly unreasonable needs"?

  51. Angstela  •  Dec 2, 2013 @12:36 pm

    Clearly GearBox Software needs a non-disparagement clause in their EULA.

  52. sinij  •  Dec 2, 2013 @1:06 pm

    Why would you do business with such organizations?

    This is simple – because legal agreements are meaningless to average consumer. They are "wall of text". They are "you accept them to get done". They are "this is normal".

    In this way legal profession holds everyone hostage, by turning mundane agreements-transaction into 50+ pages of small-font gotchas and legal-fees-waiting to happen landmines. Somehow signing a contract where reasonable person would not be able to fully comprehend majority of the agreement is still legally binding.

  53. Michael Donnelly  •  Dec 2, 2013 @3:17 pm

    The other reason you'd do business with such an organization is, well, you might not know the non-disparagement clause is there. That's partially why it's unconscionable: it is a shock to discover.

    Contracts containing such harsh language stand up better in court when accompanied with some kind of very big, obvious warning to the person, like "signing this contract limits our liability" or "signing this contract limits your ability to speak".

    Without that warning, contract is evil and should not hold up in court.

    With that warning, company is obviously an asshole and people will not do business with such organizations. ;)

  54. Ann  •  Dec 2, 2013 @5:10 pm

    I see this kind of childish, petulant behavior somewhere like Second Life, where numerous "regular people" try to run virtual businesses and then get all butthurt when people don't swoon over them. You also see it on Etsy. It's depressing that supposedly grown adults act like such kids! Also, wouldn't it be simpler for these guys to just buy good reviews rather than to punish bad ones? Less bad press and no court costs!

  55. NI  •  Dec 2, 2013 @6:01 pm

    The other reason to do business with companies like this is that once an anti-consumer practice becomes established, lots of companies adopt it and it becomes very difficult to find companies that don't. I myself despise mandatory arbitration clauses, but if I refused to do business with any company that requires them, I wouldn't have a checking account, a credit card, or a car loan.

  56. cpast  •  Dec 2, 2013 @6:26 pm

    @Laura

    Many of these clauses seem to use the exact same language ("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 *site name"). I think a lot of the people using them copy-and-pasted from each other, just changing the business name. That'd explain the commonness of $3,500: they just didn't change the penalty.

  57. Michael K.  •  Dec 2, 2013 @11:23 pm

    Failure to timely remove the negative review shall result in tenant being liable to Christo for $178.14 per day the review is viewable to the public from the date of notification.

    $178.14 per day? What an oddly specific amount. Is that how much Malshandir Butthurt Ointment costs these days? Have they even bothered to look into bulk buying?

    PRO TIP: Anyone who tries to make you agree not to tell anyone that you got fucked by them is about to try to fuck you.

  58. Anony Mouse  •  Dec 3, 2013 @2:44 am

    Note that the agreement to neither criticize nor make any disparaging statement does not mention publishing those comments online, the 'post review on any website' is a separate clause of the same sentence.

    Okay, yeah, I must have glossed over that part. Forbidding internet reviews is thuggish and reprehensible, but prohibiting private conversation is just evil. It's a vacation rental, not nuclear launch codes (even when those codes are 00000).

  59. Bob Brown  •  Dec 3, 2013 @5:32 am

    It gives me great pleasure to report that the CNN story is featured on the front page of the U.S. (web) edition this morning in the "Read this, watch that" section.

  60. Anonymous Lurker  •  Dec 3, 2013 @6:07 am

    Thanks for shining a light on this behavior. Someone has to.

  61. Jack  •  Dec 3, 2013 @8:53 am

    When I go to hotels and motels and such I simply cross out and write "NO" on any part of the T&Cs I don't like. I don't read them, but I skim over them and if anything looks stupid or questionable, I cross it out and initial it. I have NEVER had a check-in clerk say "you can't do that" and they always check me in. A lot of hotels have that "guestchecker" BS and arbitration clauses on them and I always look for that. I have yet to find a non-disparagement clause yet.

  62. Vicki  •  Dec 3, 2013 @11:34 am

    Another reason someone might go ahead and stay at a hotel/resort/vacation rental with such a clause is because the alternative is to let them charge you for at least one night's rental and not use the room: it's pretty standard for hotels to charge for reservations not cancelled in advance, often one day though recently I've seen some that require a week's notice or charge one night's room rent.

  63. SharonA  •  Dec 3, 2013 @1:06 pm

    Glad to hear they have removed the clause. I wish she'd removed it because she realized it was wrong, rather than simply bad PR once noticed.

    Has someone set up a site yet to identify the remaining no-negative-reviews places?

    We have great approval ratings and reviews on Tripadvisor, Flipkey, VRBO, HomeAway and an A+ rating on the BBB.

    I don't care how many positive reviews you have, they are meaningless.

    Emphasis mine: Reviews can not be trusted when you don't allow honest reviews of negative experiences or impressions.

  64. David C  •  Dec 4, 2013 @11:21 pm

    I don't care how many positive reviews you have, they are meaningless.

    Emphasis mine: Reviews can not be trusted when you don't allow honest reviews of negative experiences or impressions.

    Indeed. While it's good that they removed this clause, it WAS in their contracts up until now, so if I were them I would not be bragging about good reviews quite yet.

  65. nl7  •  Dec 5, 2013 @6:48 am

    I worked at a large regional grocery chain and they emphasized in orientation training that customers with good experience tell an average of 1 or 2 people, while customers with bad experiences tell an average of 10 or 20 people. Given annual spending patterns, a bad customer experience imperiled tens of thousands of spent dollars per year, if customers wavered or left.

    So any dissatisfied customer is implicitly (and unintentionally) making a threat to spread a little bit of infamy if not satisfied by the company.

    Rentals are no different from other businesses in that people could easily spread negative reviews despite never seeking assistance when it was fixable. That's true at restaurants, retailers, rentals, wherever. Businesses just don't like to see proof of dissatisfied customers online; they prefer to imagine there are none. But a good business has to be proactive and find potential complainers while they're still open to satisfaction, which means taking more responsibility for customer satisfaction than the customers do. Legal maneuvering is no substitute for customer satisfaction.

    And this seems unworkable with anonymous reviews; just wait for other tenants to move in and how can they see who did it? It's also been a while since I took contracts, but can a guest really be held to task for invitees? Doesn't that require privity? Seems like bluster and overlawyering.

  66. JonasB  •  Dec 5, 2013 @7:57 am

    I'd question the validity of a fine, but other than that there doesn't appear to be anything inherently unenforceable about a non-disparaging clause. Assuming it wasn't hidden from the customer, I don't see why a company couldn't include such a clause in their customer contracts. It may not be the best idea, but I don't understand why it can't be done from a legal perspective. Companies use non-disclosure agreements all the time, for instance, so I don't understand why a non-disparaging clause is inherently improper.

  67. David C  •  Dec 5, 2013 @5:29 pm

    Companies use non-disclosure agreements all the time, for instance, so I don't understand why a non-disparaging clause is inherently improper.

    As a computer programmer I had to sign a nondisclosure, as I had access to source code, as well as some knowledge of the companies plans for program features which competitors might have wanted to know. There was a legitimate reason for the secrecy – and the nondisclosure expired after a reasonable period of time. But making a customer sign one is unreasonable under almost all circumstances.

    Nondisparaging is something else entirely. It's saying that you can't even make a generally negative statement about the company, even if it's an opinion or a true fact. This simply does not serve the public interest – if the company IS terrible, the reviews should reflect that so people can avoid that company. If the reviews are lies that's already covered by defamation laws.

  68. Jay  •  Dec 6, 2013 @7:23 am

    The Seattle Times article posted above indicates that Homeaway suggests that it is powerless. Wrong. It permits the owners and managers to list properties. As one of their terms, it can require that they not preclude renters from writing reviews, while preserving their rights in the event of true libel.

  69. AlphaCentauri  •  Dec 6, 2013 @10:31 am

    I took her email to mean that she was in a bad financial position and didn't have a lawyer draw up the contract. She copied and pasted it from somewhere.

    So can we find out where the boilerplate language they're all copying from is posted to pull it up by its roots?

  70. jay  •  Dec 6, 2013 @2:14 pm

    So, what if those friends choose to describe what happened to you online?

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