Canadian Universities Have One Week To Stop A Disastrous Copyright Licensing Deal

Real Estate Firms Slipping 'Non-Disparagement' Clauses Into Rental Agreements To Stifle Online Criticism

from the makes-you-wonder-what-they're-afraid-of dept

Mon, Apr 23rd 2012 4:25pm — Mike Masnick

Rob Hyndman points us to travel guide guru Arthur Frommer speaking out about a ridiculous trend from some real estate firms that do vacation rentals: slipping a non-disparagement clause into contracts that effectively forbid you from writing a bad review about them online. Frommer's discussion is built off of an article Christopher Elliott wrote for the Washington Post, highlighting the trend:

But don’t go looking for the Dorows’ opinion on the Web. Within a few days of posting it, they received a letter from their vacation rental agency.

“It has come to our attention that you have written an unauthorized review regarding your stay at a home managed by Progressive Management Concepts,” it said. “If this review is published by VRBO.com, you will be in violation of the confidentiality clause of the rental contract you agreed to when you made your reservation.”

When the Dorows refused to remove the review from VRBO.com, the site through which they’d found the rental, Progressive Management promptly charged $500 to their credit card.

If this kind of thing sounds familiar, you may be remembering how some doctors and dentists have done similar things (though using an even more nefarious method of demanding assignment of the copyright on any such review).

Frommer, reasonably, finds this behavior deplorable, and notes that this is only likely to expand to lots of other things that get reviewed online, such as hotel stays. As he notes, since properties like this already have your credit card on file, it's a real risk that they can then just try to "charge" you for writing a bad review. Frommer also disputes the arguments of those in favor of such clauses by noting their argument is basically that they don't like free speech:

Now the various people who defend these clauses, base their arguments on all sorts of horrid, potential and hypothetical threats. They claim there are a lot of people who, upon checking out, threaten the rental property with a negative review unless they are given a retroactive discount on the rental. They claim, in effect, that vacation renters are blackmailing them.

In my view, simply to state that argument is to refute it. You could justify a great many denials of our First Amendment rights of free speech with scary hypotheticals like that.

Of course, the best response to something like this is to recognize that if you put such a clause into a contract, it means that you're hiding something, and aren't confident enough in the quality of your property that you can handle criticism. It should be an automatic disqualifier for a renter. Unfortunately, though, as the article notes, sometimes you don't even get to see the terms until after you agree. While I'd argue that makes such terms unenforceable, it does make things more complicated. At the very least, though, it should allow people to post a review that merely notes the fact that such a clause is in the contract, and how that suggests no confidence in the quality of the property...

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Filed Under: disparagement, real estate, reviews, vacation rental

52 Comments

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Anonymous Coward, 23 Apr 2012 @ 4:39pm

Oh yah that is what anonymity is for.
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Anonymous Coward, 23 Apr 2012 @ 4:40pm

This is where the internet steps in, this gets communicated to thousands of people, and hundreds of 1/5 star reviews come in for the company based upon these actions alone. Public backlash is what's required here. After all, we haven't signed any agreements.
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Khstapp, 23 Apr 2012 @ 4:40pm

Post a letter
So don't write a review. Instead, write a letter of complaint (or compliment) then post it online. And I'll bet my last nickel if you write a positive review you wouldn't here boo from them. This is further argument for the use of 'disposable' credit cards for merchants you intend to use only once.
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MrWilson, 23 Apr 2012 @ 4:42pm

That, in my opinion, is an unconscionable clause. Unless you're already getting some kind of significant discount for giving up your free speech rights, there's no reason you would otherwise do so. But even beyond monetary compensation or a deep discount, I don't think such rights should be legally possible even if entered into knowingly, unless the contract involves something that actually necessitates the suppression of free speech that would also be covered by other laws such as trade secret or copyright laws.
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MrWilson, 23 Apr 2012 @ 4:43pm

Re:
"I don't think signing away such rights should be legally possible..."
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Steerpike (profile), 23 Apr 2012 @ 5:09pm

It isn't really a free speech issue. The Constitution protects against government action, and doesn't necessarily protect you against entering into agreement with private parties. From a legal standpoint, there's no free speech issue to form the basis of a challenge.

There is good reason to find such contractual provisions void for public policy, however. If that happens, even in a few jurisdictions to begin with, the practice will probably decline. In the mean time, to the extent possible it is best not to do business with people who want you to sign this sort of thing.
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abc gum, 23 Apr 2012 @ 5:33pm

Re:
Free speech arguments aside, it is rather clear cut that the non-disparagement clause perpetrator who hides the clause until after the "contract" is agreed to has committed fraud, and then they charge their customers credit card - how is this not illegal?

Why do they hate the tourist industry so much?
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Anonymous Coward, 23 Apr 2012 @ 5:37pm

Progressive Management Concepts bad business practices
Exactly...
Anyone that would think of doing business with Progressive Management Concepts should be forwarned that they can not nor will not stand by their service / product. Only desperate people should think of doing business with them.

Enough bad press should either change their practice and/or drive them out of business.
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Pwdrskir (profile), 23 Apr 2012 @ 5:43pm

BBB
I wonder how a letter or phone call to the BBB would go over?

The BBB might not post the complaint, but they will adjust their rating and list the number of complaints against the company.
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Anonymous Coward, 23 Apr 2012 @ 5:55pm

Sure, steal $500 from someone. That'll stop people from talking about how sleazy you are.
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Anonymous Coward, 23 Apr 2012 @ 6:04pm

Re:
I know, right? lol
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RadialSkid (profile), 23 Apr 2012 @ 6:06pm

Re:
Thus, the Streisand Effect is in effect. I call it the Streisand Effect Effect.
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Anonymous Coward, 23 Apr 2012 @ 6:44pm

Don't write a review, just note in your review that there was a Non-Disparagement clause in the contract. Everyone will read into it that it wasn't going to be a good review.
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That One Guy (profile), 23 Apr 2012 @ 6:54pm

Re:
I think the $500 is more along the lines of a threat honestly. 'Yeah we just took $500 bucks from your bank account for talking bad about us, say anything more and we'll take a grand this time.'
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Greevar (profile), 23 Apr 2012 @ 7:02pm

Re:
I have to disagree. Contracts are enforced by law, law that is enforced by government. Were this issue to come to court and the court enforced it, they would be using government action to censor speech. I don't believe that government can use contract law to uphold the unconstitutional provisions in a contract since they are bound by law not to violate free speech. A website owner can delete your posts, but they don't have the right to tell you that you can't say anything bad about them elsewhere.
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That One Guy (profile), 23 Apr 2012 @ 7:06pm

So I'm curious, could they legally take the cash out of your bank account if you signed the 'contract' with 'Screw you', and none of them actually bothered to check if it was a real signature?
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ThumbsUpThumbsDown (profile), 23 Apr 2012 @ 7:14pm

waiver of civil liberties or denial of civll liberties?
Regretably, everywhere that citizens function as customers, they are being stripped of their most fundamental constititional rights under the guise of "informed" waiver by contractual consent.

The thus far unresolved question is how constitutional rights of Free Speech, Access to Appellette Courts, Freedom from unauthorized searches, or confiscation of private property without prior judicial review, became waivable under commercial Terms of Service (TOSs.)

The even more immediate question is why the burden is perpetually on Private Individual citizens to overcome anew a seemingly infinite iteration of impairment to their constitutional rights. After all, the factual distinction between price, or product quality or delivery date, functionality or use, are a KNOWN qualitative order of magnitude DIFFERENT from the constitutional rights of private citizens. The inclusion of Consttutional perogatives in Corporate Terms of Service, like the resulting damage to civil liberties CANNOT be an afterthought.

The News is proof enough: Ten or twenty or thirty ISPs (regulated public monopolies no less) enter into private agreement for the benefit of third party private entities (not their customers) called a Six Strike program under which the ISPs agree to present their millions of customers with imposed shared terms under which the ISPs presume to possess essentially ALL the powers and rights as private parties (including Immunity from liability) which enraged citizens sent into the legislative toilet bowl with their rejections of PIPA, SOPA, ACTA, and CISPA.

What is the legal basis for these presumptions in the aftermath of the defeat of PIPA, SOPA, ACTA and CISPA? Those millions of customers can find their "rights" defined exclusively within the framework of the ISPs Terms of Service. The mere fact that those Terms of Service effectively nullify the constitutional righs of customers falls into the realm of convenient afterthought: Want independent Appellette review of the fact that the ISP invades your right to privacy and due process by inspecting your personal files without prior judicial process? Have you been falsely accused and wish to sue your accuser in court for damages?

For millions of American citizens the answer to those questions are no longer found in the Constitution or the Bill of Rights, but in their ISPs Terms of Service.

Where in the terms of Service? Look for your right to Due Process under "Arbitration Clause".

It is not that the same public anger that defeated PIPA and SOPA and ACTA and CISPA can't find expression yet again on behalf of civil liberties; but, the infinite repetiveness of these insults must be addressed, or we might discover ultimatelty that we won a million battles for civil liberties, but lost the war,
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Amber, 23 Apr 2012 @ 7:33pm

Need some customer representation
I think that before any contracts are issued from a company (large with lots of $$ for lawyers) to a customer (probably not as much legal representation), it should first be approved by a consumer rights organization who would have lawyers for the customer go over the contract and approve of it before it could be considered a legal agreement. It's unfair that companies can basically force abusive practices on customers because they have the advantage. Consumers need a legal advocate to balance the scales a bit. Sometimes companies all follow the same abusive practices that leave consumers with no real choices. Why was there recently credit card reform? Because basically all credit companies took part in the same abusive practices, and the choice for a person to not have a credit card is not much of a choice if you want to fly, rent a car or buy things conveniently online. Banks aren't the only ones. Child care organizations can make parents sign some pretty bad contracts, for them that is. There needs to be some correction and some representation for the consumer.
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Avatar28 (profile), 23 Apr 2012 @ 7:34pm

chargebacks?
If a company does this can the person whose card was charged not dispute the charge as unauthorized and do a charge back? If the company starts getting a lot of these their processing rates increase and they even lose the ability to take credit cards. Obviously that would be a deal-breaker for them.

Alternatively, how about crossing out the part of the part of the contract that talks about disparagement?
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Pixelation, 23 Apr 2012 @ 7:50pm

An app for that
Someone needs to come up with a crowdsource app that notes renters with that clause in their contracts.
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wizened (profile), 23 Apr 2012 @ 8:28pm

Re: BBB
The BBB is an enormous waste of time. Companies with horrific service still have A+ ratings from BBB since all that's required that that they have a method for you to complain. Not that they have to respond or fix the problem. BBB is in business to make money from companies with memberships. They don't screw that up by giving companies a bad rating and they have no power at all over non-members.
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Renter, 23 Apr 2012 @ 8:50pm

Re: Progressive Management Concepts bad business practices
I heard from somebody that stayed at a Progressive Management Concepts vacation rental that the places were full of bed bugs which came home with them.

Rinse, repeat, fumigate.
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GHynson (profile), 23 Apr 2012 @ 8:53pm

Whatever
This is a class action lawsuit just waiting to happen.
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Dave Nelson (profile), 23 Apr 2012 @ 9:40pm

Huh??
Mike:
I'm a little confused about something. Is it possible for a corporation to violate the Constitution by means of a civil contract? How so? I thought the Constitution superceded all law.
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Anonymous Coward, 23 Apr 2012 @ 10:02pm

The only thing I can think of is this xkcd comic https://xkcd.com/958/
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Pixelation, 23 Apr 2012 @ 10:25pm

Re: Huh??
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, ..."

It doesn't say anything about a corporation or private entity abridging the freedom of speech.
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Anonymous Coward, 23 Apr 2012 @ 11:57pm

Re: Post a letter
Why stop at disposable credit cards? Just do not use any credit card to pay them. Direct deposit works just fine and is under the control of the consumer. If they never find out your credit card number, then they cannot hit you with bogus charges. Use of a credit card should be a last resort when there is no other way to get the goods or services you want.

The unfortunate Dorows have been forced into an unconscionable contract, had an unhappy vacation, been hit with a bogus $500 charge and had their first amendment rights trashed. That should be a lesson to all consumers, but it won't be.

With payments, there is always another way. Use it. There is over 50 billion dollars of credit card fraud every year. Who is paying for that? Merchants and consumers, not the banks.
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Anonymous Coward, 24 Apr 2012 @ 12:09am

Re: chargebacks?
Sure you can try that. The conversation goes like this:

Consumer: That was an unauthorised charge! I demand a charge back.

Bank: Hmm, maybe. We'll ask the merchant.

Merchant: That charge was authorised right here in the contract that the consumer signed!

Bank: Sorry consumer, no charge back for you. Case closed.
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Daniel J. Lavigne, 24 Apr 2012 @ 3:29am

Asserting the right to protect your rights
On any such 'Contract' the consumer, before signing on the dotted line, need but place a line striking out such a clause, initial the start and end points of that clause and inform the Rental Agency:

"If you accept that I have just struck out that unacceptable clause and initialed the changes, I shall sign this contract with all hope that the premises shall be as you have promised."

Then, before you sign, write it out in the most available 'white space':

"The 'Rental Agency' party hereto accepts that its hopes for no public comments from me in case the property is not as advertised, is NOT part of this contract and I retain my right to inform anyone of my views regarding the premises, etc."

Memo: NEVER allow anyone to usurp your right to speak up when you should do so!

Should you be a citizen of a nation that would use nuclear and or other weapons of mass murder to gain oil and other resources as the collapse as predicted on July 9, 2002 to Canada's Prime Minister actually starts to take place towards the end of 2012 . . . and you end up being 'Taxed Out!' so as to provide the means by which your political masters might survive:

Think about 'Tuning In' and 'Taxing Out'

Sincerely . . 'The Tax Refusal'

Ps: As for the 'company' that robbed their client of $500.00 . . help the market place correct their thinking . . . spread the word!
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Anonymous Coward, 24 Apr 2012 @ 3:44am

Well, at least its nice to see our governments showing the rest how it should be done!

Oh, wait

At least its nice to see our governments showing the rest how it should be done?

You're gonna have cases like these popping up all over the place now, from small business to big, all because of our governments recent stance on behalf of Media companies and no doubt their own convuluted ideas

Vote for internet gimping, i am, you should too
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Anonymous Coward, 24 Apr 2012 @ 3:51am

Is it possible for a EU member country to make a bunch of laws protecting all aspects of the internet as we have known them, without having to gain permission from the EU?

A safe haven if you will

Just curious, if thats even possible
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abc gum, 24 Apr 2012 @ 5:02am

Re: Re:
"they are bound by law not to violate free speech"

In us of a, Freedom of $peech violates you.
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abc gum, 24 Apr 2012 @ 5:06am

Re: Re: Huh??
It also does not address fraud.
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abc gum, 24 Apr 2012 @ 5:13am

Re: Asserting the right to protect your rights
"Unfortunately, though, as the article notes, sometimes you don't even get to see the terms until after you agree."

Perhaps there should be someone assigned to look into these things, maybe even pay this person from taxation of the citizens they are sworn to protect ........
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Anonymous Coward, 24 Apr 2012 @ 5:18am

Re: Re: Asserting the right to protect your rights
Sir, that is retarded. When someone signs a contract, it is their duty to fully read the contract. If they don't know what some of it means, than they need to hire a lawyer to look over it, NOT have the public money be fueled for a such a ridiculous cause. We're not a socialist society (yet), so don't argue for such ridiculous things.
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Anonymous Coward, 24 Apr 2012 @ 5:58am

Re: Re: Re: Asserting the right to protect your rights
This would be a much better use of taxpayer funds than say, the TSA.
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Niall (profile), 24 Apr 2012 @ 6:29am

Re: Re: Re: Asserting the right to protect your rights
I think the issue is that specifically onerous terms (like this) are inflicted after a verbal agreement, and without the customers realising that they can negotiate; or maybe they aren't even in a position to negotiate, but this would be deemed inappropriate by a court of law.
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Some Other AC (profile), 24 Apr 2012 @ 6:33am

Re: Re: chargebacks?
Depends on the Card Issuer. Having worked in retail, I have seen customer's not happy with products/services who have successfully charged back the costs. AMEX is usually very consumer friendly in this respect. Not sure about VISA or Mastercard.
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Doh, 24 Apr 2012 @ 6:37am

Re: Re: Re: Asserting the right to protect your rights
Sarcasm - how does it work?
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The Devil's Coachman (profile), 24 Apr 2012 @ 6:43am

Re: Re: BBB
BBB is utterly, totally and completely worthless, and complaints to them get logged, and that is where it ends. Company ratings are almost never negatively affected, unless they are found guilty of murdering their customers.
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The Devil's Coachman (profile), 24 Apr 2012 @ 6:46am

Re: Re: BBB
BBB = Bad Business Buddies
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The Devil's Coachman (profile), 24 Apr 2012 @ 6:48am

Re: Re: Progressive Management Concepts bad business practices
And we have no proof that they don't give preferential rates to pedophile terrorist drug dealers, either.
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Michael, 24 Apr 2012 @ 9:15am

Re: Re: Huh??
"It doesn't say anything about a corporation or private entity abridging the freedom of speech."

Nevertheless, the government could manipulate businesses into doing their censorship bidding for them, thereby creating an effective workaround -- rather than directly performing censorship themselves, they simply produce a hit list of IPs for companies to go after. When a company slips a clause into their contract/agreement aimed at silencing the invested party from speaking publicly about their services, you know something is wrong.
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DCX2, 24 Apr 2012 @ 9:17am

Re: Re: Re: Asserting the right to protect your rights
So you would rather having millions of citizens hire lawyers on retainer for just about anything they want to do right now, rather than have those citizens pay fractions of a cent so that we can have a consumer protection agency?

You must be a lawyer yourself.
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Almost Anonymous (profile), 24 Apr 2012 @ 10:58am

Say what?
Unfortunately, though, as the article notes, sometimes you don't even get to see the terms until after you agree. While I'd argue that makes such terms unenforceable, it does make things more complicated.
Err, what is there to argue? In contract law, there is a concept called "meeting of the minds" which boiled down just means that all parties are knowledgeable of and agree to all terms of the contract. Without a meeting of the minds there is no valid contract, which means those terms (plus the rest of the contract!) are indeed unenforceable. No arguement required.
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69matt (profile), 24 Apr 2012 @ 3:29pm

preventing backtalk from renters
This reminds me of a time, years ago, when I was looking for work. I was trying to sign up with a temp-work agency. The agreement they wanted me to sign was draconian. It included a clause that bound the signer to any/all regulations that might be set by the future employer(s) - and you had no idea what they might be. It included a clause that gave the temp agency - not the employing company - rights to any copyrightable creation you might make while they (the agency) was hiring you on behalf of a future employer. I refused to sign, and went looking for work elsewhere. On a happy note, that agency is no longer in business.
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abc gum, 24 Apr 2012 @ 4:42pm

Re: Re: Re: Asserting the right to protect your rights
I believe you missed the point.

There are existing functions within government at city, county, state, and federal level that are tasked with the prosecution of those who break the law. Their title may be attorney general or district attorney but they are supposed to pursue prosecution of those who would violate the rights of the citizens within their jurisdiction. If I am correct, fraudulent business practice would fall under their purview.

You may think it's retarded, others disagree.
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btr1701 (profile), 25 Apr 2012 @ 6:29pm

Re: Re:
> I don't think signing away such rights should be legally possible...

Of course it should be. To require otherwise would also be an imposition on my freedom. My right to speak or to to speak is a valuable commodity to me, and it's not the proper function of the government to impose limits on my ability to manage that right to my best benefit.

If I couldn't sign away my right to speak in exchange for money, I could never enter into a settlement agreement, for example, which includes a confidentiality clause. If the potential for settlement were removed, my lawsuit might drag on for years and become financially prohibitive to me, thereby making it impossible for me to receive justice in my case.
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btr1701 (profile), 25 Apr 2012 @ 6:34pm

Re: Re: Re: Huh??
> It also does not address fraud.

Then we're agreed that this isn't a 1st Amendment issue at all.
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That One Guy (profile), 6 May 2012 @ 5:30pm

Re:
"We would have written a review of our stay here, but there was a non-disparagement clause in the rental contract we signed, so unfortunately we cannot describe our stay, sorry."

Love to see them try and take that to court.
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Anonymous Coward, 2 Feb 2014 @ 8:36pm

Re: Re: BBB
Plus, no matter anyone's opinion of the BBB's effectiveness, too many sleazy companies just outright fake BBB ratings, seals and membership in an attempt to appear more trustworthy.

I agree completely that the BBB has no effect whatsoever on non-member businesses.
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Stevie D, 23 Mar 2019 @ 10:59am

New Law Prohibits These Clauses
In 2016 the Consumer Review Fairness Act became law, preventing the enforceability of this sort of thing:

https://www.ftc.gov/enforcement/statutes/consumer-review-fairness-act

The management company on a house I want to lease has included a "Mutual Non-Disparagement Agreement," which has untruthful language that the agreement is "arms-length" and the parties are of "equal bargaining strength," etc., apparent attempts to get around the law.
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