Jun 28, 2016 5:11 PM

NH1 News Investigates: Sue for a negative review? What you need to know.

NH1 News

“The consumer wants to have confidence that when they review these sites, what they’re getting is honest feedback.” - Jim Steiner, Attorney

With technology at our fingertips, chances are you rely on customer reviews—the good and the bad—to help to you decide what to buy or who to hire. One New Hampshire woman says she was scared into silence by a contractor she says took her money but didn’t do the job.

Turns out, the woman signed a contract, which—in the fine print at the bottom—states that she can’t say or post anything negative about her experience–even if she’s telling the truth.

If this non-disparagement clause sounds familiar—like you’ve seen it on TV recently—it may be because Donald Trump used it with at least one of his campaign workers. Here's a clip from a CNN story:

Jeanne Moos/CNN: “Some have speculated that Corey Lewandowski couldn’t say anything bad because…..”

Lewandowski: It’s been an honor and a privilege.

Trump: “I think Corey is terrific…”

Lewandowski: “I am so thankful for this chance….”

Jeanne Moos/CNN: “Because he signed this confidentiality agreement with a no-disparagement clause, you hereby promise and agree not to demean or disparage publicly the company, Mr. Trump, any Trump company.”

Afraid of being sued, the New Hampshire woman called us hoping to find a way to warn others who may be looking for a contractor do home renovations. We went through the contract with our legal expert Jim Steiner. While you may think this woman is protected by the First Amendment, Steiner says this unscrupulous person’s right to free speech would likely cost her a lengthy legal battle.

“This kind of clause might be deemed enforceable because it has at least been written to go both ways between a customer and the contractor,” says Attorney Jim Steiner.

Fair or not, these contracts can stand up in court.

“Both of us agree to this so there’s valid consideration, so when you contract away your right to say negative things about me, I have contracted away my right to say negative things about you,” says Steiner.

And even in the right, this woman could still be a lawsuit target.

“Could that person sue her for defamation? The answer is yes. Unfortunately, after months and months, could she be found not to be liable because what she said was substantially true? That answer is yes, but nobody wants to go through either hiring a lawyer or trying on their own to prove the truth,” says Steiner.

That’s why we’re not identifying the woman.

We are sharing what we can because this no-negative review clause is a serious issue.

So serious, that the United States Senate recently passed Senate Bill 2044 – The Consumer Review Freedom Act – that would make those clauses illegal if they muzzle fair comment.

“It would free consumers to make honest reports on an Angie’s List, other kinds of filtering reporting service, free from any potential liability,” says Steiner.

It went to the House in December 2015. That’s where it remains tonight. The House introduced a bill with the same purpose in April. While lawmakers hash this out, Steiner says consumer review sites should do more to educate people on businesses that have—and enforce—these clauses that stifle negative customer reviews.

“Maybe the filtering company – like an Angie’s List – ought to indicate that we will not allow vendors who require these non-disparagement clauses in their contracts to be included,” says Steiner.

I contacted Angie’s List, HomeAdvisor, Amazon, Yelp and the Better Business Bureau to find out what their policies are on hosting reviews for businesses who operate this way.

  • From Angie’s List: “In the type of situation you’ve described, we would consider this a “gag order” and this is prohibited through our policies for service providers listed on Angie’s List.”
  • From HomeAdvisor: “We highly discourage that practice from our pros and if we find out about it, we will consider terminating that pro from our network. Additionally, if a homeowner has signed an agreement like that, we disregard it and will post the review.”
  • From Yelp: “We don't have any systematic way of knowing if a business has non-disparagement clause in a service agreement, but when these are brought to our attention by users who have faced legal action, we may place a legal alert on that business' page.”
  • Better Business Bureau: “Businesses that do use them may find this information disclosed on their BBB Business Review on bbb.org so that potential customers are warned of the practice. BBB Accredited Businesses cannot use such clauses under the “BBB Code of Business Practices.”

If you’ve had a negative experience with a contractor—or any business—and you want it made public, Steiner says you can file a lawsuit.

“When you initiate a lawsuit against a defendant in court, you have an immunity for being sued for defamation. As long as what… it’s assumed what you’re saying is truthful. Substantial truth will win out over the clause,” says Steiner.

We will continue to follow this story for you. We also want to hear what you think about the non-disparagement clause. Take the poll on NH1.com. Also, send me an email me or send me a message on Facebook or Twitter to keep this important conversation going.


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