Flutterby™! : TOS abuse 2013-11-12 19:51:23.913066+00

TOS abuse

2013-11-12 19:51:23.913066+00 by Dan Lyke 2 comments

Woman writes negative review of Kleargear.com, receives claim that she owes $3.5k, and that it'll be reported to credit bureaus:

That was the end of it, Jen thought, until three years later when Jen's husband got an email from Kleargear.com demanding the post be removed or they would be fined. Kleargear.com says Jen violated a non-disparagement clause. It turns out that, hidden within the terms of sale on Kleargear.com there is 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."

My understanding is that 'click through' agreements have NEVER been adjudicated in court because there is a significant chance they would not be upheld. This is because there is no existing case law stating an agreement can be made where both parties have NOT committed it to writing with a signature to verify they both had a chance to go over the terms.

In fact, the common legal advice is not to read them! Because that way you can say on the stand you didn't know what the contents were and had no idea you violated the terms. Whereas if you did read them than the 'click through' might actually hold weight.

I would be interested to know any information to the contrary of this. Especially since many such agreements would take more than an hour to read and comprehend, so I don't read them. As much due to time as anything. (Take Apple's 50 page opus for iTunes for example.)

I think there's a big difference between "adjudicated in court" and "what a company can impose if you don't have the resources to fight back". I rather suspect that both Kleargear's and RipoffReport.com's real failure here was that they asked for too much. Try for a few hundred bucks and you can probably cow quite a few more people into just writing checks before someone actually fights back.