Senate Passes Bill Banning Non-Disparagement Clauses
from the silencing-the-silencers dept
Despite it being transparently obvious that non-disparagement clauses hidden in fine print serve the singular purpose of deterring complaints about bad products and services, companies still deploy them with little fear of retribution. To date, only one state has actually banned the use of non-disparagement clauses: California.
The issue appears to have finally reached the critical mass needed to propel it onto the national legislative radar. Back in May, multiple representatives started pushing for a federal ban on these clauses, prompted in part by the high-profile KlearGear debacle, in which a couple had their credit rating ruined by the online retailer in its pursuit of a BS $3,500 fee tied to its (nonexistent at the time of the negative review) non-disparagement clause.
The Senate's version of this bill -- which also forbids companies from requiring customers to sign over IP rights to their reviews (so they can be targeted with bogus DMCA takedown notices) -- has cleared another significant hurdle, as The Consumerist reports.
A nationwide ban on the use of tricky “non-disparagement” or “gag” clauses — which prevent consumers from providing their honest opinions in public forums — cleared the Senate today, bringing it one major step closer to becoming law.The House version hasn't moved forward since May. The Senate's passage of a nearly identical bill should prompt some action from this side of Congress. Both bills would seem to have enough support to make this a reality.
If passed by the full Congress, the Consumer Review Freedom Act [PDF] would give the Federal Trade Commission and state attorneys general the authority to take enforcement action against businesses that attempt to these ethically questionable clauses to quiet consumers.
If passed, the new law would authorize the Federal Trade Commission to take action against companies deploying non-disparagement clauses. Unfortunately, the Senate version does not authorize $16,000/day fines for violating the law like the House version does, instead limiting the FTC's actions to civil proceedings. But either way, a ban at the federal level would give shady American companies no place to hide.
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Filed Under: feedback, free speech, gag clause, non-disparagement clauses, reviews, senate
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Banning "gag" clauses is just lube
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Clause
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is posting benchmarking results considered "disparagement"?
https://www.techdirt.com/articles/20151214/09394433072/daily-deal-dragon-pc-mac.shtml
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Re: is posting benchmarking results considered "disparagement"?
So, I think a term prohibiting benchmarking would be be prohibited by this. What is benchmarking if not a performance assessment?
And by the way...
Yikes. Better read those terms and conditions, because it's not just unlawful for them to offer such a term, it's unlawful for you to accept it!
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Soon if you are all mature enough you might get to the stage where things like:
* Reasonable for life of product warranties are statutory (ie: Washing machines/Refrigerators have 10yrs or more life)
* If something is not fit for use or as advertised the consumer (not the seller) gets the choice of Refund, Repair, or Replacement [ and for serious faults this extends to life of statutory warranties]
* everything goods and services are covered. That includes cars, Houses, and other MAJOR purchases.
* Corporations can not in any way shape or form be defamed.
* Mandatory and Binding arbitration is an instantly voidable term in any contract for goods and/or services [though Business to business contracts ONLY have some binding arbitration ability still]
* Anyone can compare one product to another no matter what a EULA can state.
It will take time, but maybe in the far distant future (probably another 30yrs) you too will have all the above.
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Prediction
Expect the first challenge before the ink of the President's signature is dry.
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Re: Prediction
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Re: Re: Prediction
Nothing like the ruling allowing companies to force every lawsuit into company-leaning arbitration, for example.
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Economic theory
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Re: Economic theory
In an actually free market neither side would have an advantage over the other, you'd just have people trading on an open, voluntary basis.
In practice we are forever being told by free market advocates to either accept the situation or vote with our wallets by taking our business elsewhere if we're not happy. "Screw consumers" is not a philosophy I'll ever agree with.
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The simple but impossible for most
Most do not either know or are too afraid to remove clauses from such documents before signing.
I still remember the almost apoplectic look on the car salesmans face as I boxed, crossed, intialled and dated every section I was unhappy with. He insisted that I could not do that and I insisted that I could go to another dealership and forward the contract to the manufacturer. ... the second statement made him very amiable.
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