A Texas woman was fined $3,500 for writing a negative review online.
Jen Palmer’s husband ordered her a number of Christmas gifts from the website Kleargear.com several years ago, but 30 days passed and the products never arrived, and PayPal cancelled the transaction, according to Utah CBS affiliate KUTV,
She said she tried to reach someone at Kleargear to no avail and vented her frustration by writing a negative review on the website Ripoffreport.com.
“There is absolutely no way to get in touch with a physical human being,” says her review, which accuses Kleargear.com of having “horrible customer service practices.”
Three years later, Jen’s husband got an email from Kleargear.com demanding the Palmers remove the post or suffer a fine. As KUTV reported, Kleargear.com has hidden within the terms of sale a clause that reads:
“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 Kleargear.com, its reputation, products, services, management or employees.”
The clause said if a consumer violates that contract and does not remove the post within 72 hours, the consumer will face a $3,500 fine. If the fine is not paid, the delinquency will be reported to credit bureaus.
Jen tried to get her negative post removed, but Ripoffreport.com would not let her. After their credit was dinged, she and her husband tried to dispute the delinquency, but since Kleargear.com says the charge was valid, they’re stuck with the credit hit.
“This is fraud,” Jen told the TV station. “They’re blackmailing us for telling the truth.”
Now the Palmers cannot get a loan to fix their home’s furnace and buy a new car.
“I have the right to tell somebody else these guys ripped me off,” Jen said.
As KUTV investigated, they learned of many other negative comments about Kleargear.com on consumer complaint boards. The company got an “F” rating from the Better Business Bureau in 2010 for “not delivering products purchased online in a timely manner” but now has a “B” rating.
KUTV tried without success to call someone at Kleargear.com, but an email from an unidentified person defended the $3,500 charge, referring to the terms of sale.
Jeff Hunt, a First Amendment attorney in Salt Lake City, told KUTV he’s “never seen anything like it.”
“I think this is outrageous that a company like this would force a consumer to relinquish their First Amendment rights to speak about their product as a condition of sale,” he said, adding that he believes there is a good chance a judge would find the non-disparagement clause unconstitutional.
“I have a serious question about whether a court would enforce that kind of covenant because it’s massively over broad and against public policy,” Hunt said.
KUTV also reported that there are questions as to whether the non-disparagement clause even existed back in 2008, when Jen wrote the negative review. While Kleargear.com says it did, website archives from 2008 don’t show it.
As for the Palmers, they say they cannot afford a lawyer, but KUTV put them in touch with the credit bureau, Experian, and Jen hopes one last appeal can get their credit back in good shape.