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.
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.
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
- No, Trump Didn't Argue That Protesters Have No Right To Protest or Violated His Rights - April 24th, 2017
- A Pony A Day Keeps the Doctor Away - April 20th, 2017
- Alex Jones And The Rule of Goats - April 19th, 2017
- The Seductive Appeal of the "Nazi Exception" - April 18th, 2017
- The Road to Popehat: Spring Edition - April 17th, 2017