artists_beware | Question about TOS

So you can't even say you liked the service?
That seems incredibly backwards.

I suppose if it was something I agreed to, then I'd uphold it on principal alone. But it's kind of a strange thing to agree too.

But, I'd play it safe and respect the wishes of their TOS, if the customer agreed to that in the first place. I do feel in some respects it could be a binding contract but I'm no expert on this - unless the artist breached that contract in some way or did not finish the service. I would not do business with someone who required it.

Edit - Woops meant to reply to OP! Sorry!

Edited 2014-02-04 07:20 (UTC)

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As below, I told you we are trying to keep this advice anonymous. I will not give you a warning - but understand this is not acceptable and I will be screening your comment and freezing this thread.

You have mentioned the artist twice and what transpired twice now, Do not do this again.

That does make sense. I would respect the wishes of their TOS, but be wary of anyone who doesn't allow a review of their work, especially if something negative arises.

But I agree, if you agree to do business with someone with this in their TOS and the contract is not breached by the artist, it is not wise to go against it.

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Keep in mind we try to keep Advice posts as anonymous as possible =) Please do not elude to who the artist in question is, or the nature of what transpired.

I'm not going to! C:

I said I wasn't going to and derped! Sorry about that won't happen again!

I think this would need to be less vague, really.

If the customer is lying and spreading false information, I suppose they could get sued for this, yes? It's slander and such.

But if the customer is warning about a potential scam or con-artist I don't think the seller suing the customer would get very far in court considering they're stealing from people.
I'm not really sure a TOS like this would even stand up in court. Don't customers have a right to share information be it a complaint or not on something they bought?

(Not a lawyer, doesn't know much, just chiming in.)

It would probably be different with a Scam/con. Since the artist would then break the contract first - by not delivering what they are paid for. I think this is more if you get what you pay for, but the experience was still a bad one. Then the artist haven't broken the original agreement and it would be unwise to go against their ToS and post a review.

There was a court case in the news recently that covered exactly this. I wish I could remember the outcome, or find the link.

I think I might know what you're talking about. A woman bought from some company (somethin Gear I think), wrote a negative review about them and they trashed her credit score by calling people. I can't remember who they called to do that sort of damage, but it messed with her family enough where they couldn't buy a furnace for winter, and piled on blankets to keep their baby warm. Last I heard they're suing the company, and people were pretty angry about it.

I heard about that too. The company tried to zing her with a $3000 charge or something outrageous like that.

Personally, I find that kind of thing in a TOS to be just the same as a "I never do refunds!" clause. They can put it in if they want, but it would never hold up in court.

Too be honest, without some serious big name lawyers to back it up, I can't see anyone outside of big businesses getting away with a clause like this in court, especially if no slander or libel is taking place.

But I really don't have a definite answer, it's far to huge a grey area in far too many places.

Yeah I'm pretty sure that if large companies with lots of legal power could enforce this, they would. As is I think the best they can do is to get people to sign a contract when they give them hush up money, like after an iPod blows up in someone's face.

Or a Samsung!

But I agree wholeheartedly with this comment.

Sounds like a unilateral NDA (non-disclosure agreement). It's usually reserved for things like games that are in BETA; people get to play it, and test it, but don't get to tell anyone so as not to spoil it for future players.
Or, for example, if you're the artist doing illustrations for a book but wouldn't be allowed to tell people what it was about.
That sort of thing.

For an individual artist to try and ban reviews sounds shady and unenforceable, unless they are capable and willing to take you to court, which just isn't likely.

Wait, so no one can say anything about anything, anywhere, ever?

... that sounds *extremely* shady to begin with. If you're going to open yourself to business dealings, you have to be prepared to face the results, it goes with the territory. (Personally, I wouldn't do business with an artist with this in their TOS, but that's just me.)

Short of this artist/person/entity having some high-priced lawyer in their pocket, and being prepared to shell out the ridiculous amount of money in court fees required to even pursue this kind of action, I don't see how this can be legally binding. I don't think you can actually enforce this kind of thing.

This sounds a lot like an NDA (non-disclosure agreement,) but, if that's the case, you are being supplied with something (access/information/product/etc) with extremely limited distribution for some purpose beyond mere consumption (ie BETA testing, future review purposes, contract to produce exclusive material, etc.)

For example, if this were part of a contract to produce exclusive artwork for a new PS4 game or something, ok that sounds perfectly legit (and expected,) but if this is some random artist on some random art site producing $40 commissions? Uh... no.

This is pretty vague, so, without some kind of situational awareness, I just don't know.

These kind of things have happened before. (http://abcnews.go.com/Business/couple-fined-3500-negative-review-fights-back-lawsuit/story?id=21249094)

Whether or not it will hold up in court seems to be new territory. At least in the US that is. The consensus seems to be that, no, you can't keep people from posting reviews online.

Yea that's kind of what sparked my interest to ask; the yelp case and the kleargear case.

In both cases they haven't been decided yet. It seems that enforcing the rule caused more hassle than just letting the review be posted.

So don't post a review.

Post an opinion. You can never sign away your rights to express your opinion.

I imagine if the TOS says do not post anywhere, that doesn't mean you can't share reviews privately or by word of mouth. I feel like this falls into that fuzzy grey area of freedom of speech, after all it is your personal experience/opinion of their services.

Depends on the countries and I would bet dollars to donuts that if a bad review was posted, they would scream and shout at the customer and that's about it. Now that can get very tiring very fast.

If they get a lawyer into it, I would first make sure it is a real lawyer and not some Internet made up character who is RPGing a lawyer. Which happened to a friend recently.

If the customer and the maker are in the same country then one set of rules apply. If in different countries, then a totally other set applies.

The maker is hedging that if they say that there can be no reviews either positive or negative they can get it to stick because they can say they are being even handed since saying no negative reviews can be shown as bias.

Personally, depending on how much time I want to spend with the backlash since the maker seems to be a little hair trigger, I would post a review in my personal Internet space (blog, Facebook, Interspace) since that's my space and I can say what I want there.

Its a bit vague on what exactly went wrong that something needs to be 'reviewed' but if the commissioner is unhappy with the artwork they paid for, such as glaring anatomy errors, or lets say.. your character looks like a canine when it is feline.. I see it as extremely shady that you wouldnt be able to say anything so these errors could be fixed.

I dont think the law works that way. If you paid for a product, and they did not deliver the product, you should be able to say something. I dont think you can sign this with a contractor company, have them come and make you a deck, and deck, and what they really gave you is steps.. then I dont think they are covered by that agreement.

I think that if I were that customer, I'd be sorely tempted to post a dry-as-dust, utterly factual, scrupulously neutral account of what happened. That would be neither a review nor "negative or positive".

It would also seem professionally self-harming for the artist to sue, since I have a hard time believing that the court of public opinion would be on their side. They'd probably end up with a worse reputation (and so less work) than when they started.

If the customer agreed to terms of service, they're obligated to obey them regardless of the outcome. This sounds like yet another case of "Should've read dem ToS more carefully".

Although a customer isn't obligated to obey TOS conditions that are considered legally unreasonable(which has a whole bunch of bits and pieces like unfair terms and etc., I'm in a common law country so it's even a little more tricky to hammer down exactly).

That's part of why a seller can't just say 'no refunds' in their TOS and try and enforce that.

I'd be tempted to say that in a British Commonwealth common law country, the seller forbidding the buyer from posting any review preemptively as part of the agreement would be considered an unfair term, as 'contrary to good faith'. There's a risk the seller would not do the same quality of work on an un-reviewable product as they would on one the consumer was free to review.

Honestly, I think a buyer would be in their right to post a review regardless of whether the seller states that or not. Unfair terms comes into play when trying to lay blame for a breach, so if the seller tried to claim the buyer breached when they posted the review they'd be likely to loose that case because their TOS was contrary to good faith. It'd be an expensive legal mess that the seller probably wouldn't win, and if they manage to have things side their way that the customer breached posting the review, then they'd have to try and prove they actually were damaged by the review, that it caused them to loss business or they might just walk out with the ol' $1 punitive + court costs ruling. It'd be an interesting case though!

The maker/artist would probably end up just having to blacklist any customer that posted a review and not do business with them again. That's probably the only practical way they could try and "enforce" this.

But in a moral, common sense way you are totally right that the customer should read the TOS and if something like this, legally enforceable in court or not, in the TOS sends up red flags/bad vibes just take their money and nope on out of there.

And the seller should really just not waste their time and damage their good will having an unreasonable TOS clause to begin with in.

Or folks could read artist's ToS and if they HAD unreasonable clauses- not do business with them in the first place. If we're arguing the legitimacy of terms of service and how well they can be enforced, they can't be. If a client has a bad time, they aren't going to come back to you a second time. So you, as the artist, can't enforce anything reactively. So either we respect the artist and read through their ToS, or we don't respect them and ignore the ToS and nitpick which things we want to obey at what times.

No, you read the ToS, and if you find anything unreasonable, you just find another artist with a more respectable set of terms you can deal with.

That's all I'm saying. Trying to figure out if they SHOULD obey the ToS because they had a bad time is kind of null. ToS apply whether you have a good or a bad time, and they were agreed to beforehand.

I agree with on that 100% Read the TOs, If you see anything iffy just don't buy. I know some people get blinded by wanting to work with a popfur so badly they'll act completely unreasonable to do so. That's pretty pathetic.

I only went into the legal stuff of whether that clause was something that should/can be in the TOS because of this part of your comment:

they're obligated to obey them regardless 
of the outcome

because in this case, no they aren't obligated at all.

If they aren't obligated, what's the point of having a ToS at all?

Well with a lot of TOS terms the buyer IS obligated, like when it comes to whithholding a certain percent as a deposit if the seller bails; but if the TOS terms are (legally) unreasonably/unfair terms, like the no review thing, then the buyer is not obligated to that specific term, even if they make an agreement to buy.

There's legislation in most countries (Consumer Guarantees Act in NZ, Consumer Protection Act in Canada, for example) that prevent someone from writing their TOS(or contract) to try and avoid liability, or fair terms, when it comes to selling goods for personal use.

A TOS that's legitimate is legally binding, but they really are meant to be part of a larger contract, not serve as a stand alone agreement.

(edit for a couple spelling goofs)

Edited 2014-02-06 07:43 (UTC)

Oh and just want to add that courts do expect the consumer to do their 'due diligence'- so it's not going to be favourable if you go in having agreed to an unreasonable term knowing it was unreasonable and planning to ignore it, or even worse not read the terms of service at all. Agreeing to a TOS hoping you can weasel out of it later is a really shitty thing to do as a buyer. So signing a TOS you plan to challenge later wont win you favours with a judge- and can land you with a judgement that you breach- but if the term you challenge is determined as unreasonable/unfair it will protect you from a judgement against you.(just don't expect to be awarded costs if you went into it knowing it was bad business!)

I don't think there are any protection laws like that in the US, plus international sales might not apply the laws of the land for the commissioner. I think that US courts are more likely to rule in favor of even an unreasonable ToS, given their preferential treatment of businesses. Plus it would be up to the judge to deem what was unreasonable. Not being able to post a review might not sound too unreasonable to an outsider.

There are protection laws in the US, but you're right that unfair terms aren't as clearly define or likely to be enforced. It's been put forward in the US to try and move towards the European system but, yeah, that wont change fast. *L*

Hmm, certain things are unreasonable by their very nature and that is already set in precedence/law.
To my eye and experience in business law, with some consumer law(in a common law country, though), I'd say the no review is almost guaranteed to be consider unfair terms/unreasonable because it goes against that paramount consideration of a contract: good faith. I can't imagine any judge allowing it unless it was not just a part of a TOS but set up as non-disclosure agreement. Even in that case I think only if the review mentioned specific construction details/building techniques could something be enforced.

That's kinda why even in the very pro business protection US you see negative review based legal cases as defamation/damages from business loss cases not contract breach cases.

For international cases of defamation it's trickier for the one suing. Even if they win in their own country, a defamation case must be re-tried in the US under the SPEECH Act- this is because of their rather unique free speech/free press laws and their equally unique commercial laws.
So if buyer outside of the US posted a review depsite the TOS saying not to, [and assuming the seller couldn't try for a breach(which doesn't get them any damages- they are just made whole. So all they could do is get the suit back to try and sell, or a fair payment for time spent on the artwork)] and the seller tried to sue for lost business based on the review that case would end up having to be tried twice. They'd have to win in the country of the buyer they sued, and then have that judgement reviewed by a judge again here in the USA, with no garauntee they'd win it.

So, really I can't understand the logic of why any seller would try and have this in their TOS. It's a good will disaster and it'd be really hard to enforce. Especially since to have any hope they would have to explain in explicit detail what they consider a review, what terms are 'review' terms, where posting the opinion makes it a review, etc...
They'd be taking a gamble in US going for a breach, and they'd be SOL on trying for a breach in most any other nation. If they go for damages they have to prove the negative review actually did cost them something, it's hard to get a judgement for butt hurt with no other more clearly demonstrable damages.

BTW I've really enjoyed this conversation, thanks for having it with me.

I find a lot of the discussion posts on AB are so interesting.

I'm going back this Fall to change specialties to consumer law and then stand for the bar. I can't do the forensic side of business (for acc and suspect documents and etc.) anymore because I've started loosing my vision. I can do consumer law. Between AB and badservice there's always something interesting going on in consumer law on LJ. *L*

In the US, people have been sued for leaving reviews online. I have seen companies use defamation of character and breach of contract to sue. Some have been successful and some have not.

"have seen companies use defamation of character and breach of contract."

Usually to win in a case of "defamation of character" have pretty hard evidence that shows the customer, without a single doubt, done it personally. Kind of like "Emotional damage" cases- they are hard to win.

They also have had to incur some kind of damage as well. If someone says something mean about you, you can't just expect money for that. It has to have harmed you in some way- like getting kicked out of your apartment or customers cancelling orders/sudden drop in customers after the action.

I think proving a review actually lost them business might be tricky(I guess the seller would have to go with: buyer posting negative review = foreseeability of damage to their business?).

I dunno how it would affect them trying to prove a breach, which would likely only get them their suit/time spent drawing the artwork(and that'd need to be priced, there's more fees) back- not damages.

I dunno on this one. *L* The American laws on it in this case are way different from my country! And I would have assumed Free Speech would protect this kind of things, I'm kinda shocked it doesn't.

I live in a common law country where we have both the legal fiction regarding unfair terms and the Unfair Terms Act itself and these tend to consider trying to ban a fair review of a product as an unreasonable term. So the seller could never win trying to enforce it as a breach.
(NDAs, as were mentioned above, are not considered in the same kettle of fish as a review by the direct/end consumer)

I would highly advise against dealing with such an individual, however, if choosing to do so:

I sincerely doubt that they could back up that claim in court, especially without a ton of legal fine print to back up what a 'review' is.

If they breached their contract for any reason, then the entire document is null and void, unless there are provisions speaking specifically to that effect, in the proper language, etc.

I wouldn't allow that as a public TOS on FA, I can assure you of that, unless it was for a VERY good reason. It positively REEKS of scam.

Post it. Post a complaint instead- not on a review form or site. But maybe something you own- such a personal blog or website and show evidence.

If you feel that it outweigh the risks- then I highly suggest to speak publicly on this issue.

"Can the artist then sue the customer if such a review was ever posted?"

It depends on the TOS and how much the costumer paid will give your risk of being sued. And even then- I seriously doubt it will be considered that the customer will be found guilty due to "Freedom of Speech and Freedom of the press". And we have to ask did they gave a specific definition of what is a review. If not- you can argue that it is complaint- showing why people should not buy their product.

I just want to add one thing after checking out some of the American cases: someone being sued for posting a review in those cases was brought as a damage claim, not a breach claim. So those cases actually don't apply to a TOS issue directly.

If the seller wanted to try and collect because their TOS was breached that would be a contract law case. If they wanted to sue because they feel they were damaged by a review that was defamation of their person or business that'd be a civil tort case. They aren't mutually exclusive, but a seller could NOT sue you for defamation because you posted a review when their TOS said not to. They would have to sue you for a breach of contract, and if they succeeded in that, for any damages resulting from the breach.(probably foreseeability- the buyer could foresee a negative review might loose the seller business but posted it it anyway. I'm not saying the seller would win, in my country they wouldn't because they never would have won on the breach issue, but that's probably the only damage they could claim)

(and I realise that there are both civil and criminal defamation, but talking about in this case a product review that might loose them business would be a civil issue.)

Edited 2014-02-05 06:07 (UTC)

Does the TOS at all say what would happen if reviews are posted? Because if it doesn't what exactly are they going to sue them for. It's a half-written non-dispute clause, it's up to a judge's digression if anything should be awarded or not.

So sure, they -could- put the wheels in motion for a legal dispute, but how successful it could be can't really be guessed.

That's a really really weird clause, and the way you described it makes it seem very vague as well, it's kind of hard to think about this.
In my opinion, it seems a little extreme to sue over a review, and it seems like something only big companies can get away with :O

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