Question about TOS

[familliaraver.livejournal.com]

A customer agrees to a TOS that states "No reviews, negative or positive, can be posted anywhere for any reason"

Customer has a horrible experience.

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

Yes, that's a horrible TOS, I have no idea why anyone would ever agree to it, but should the customer just let it go for fear of being sued or is it a baseless threat.

Comments

[sableantelope.livejournal.com]

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.

[skanrashke.livejournal.com]

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.

[sableantelope.livejournal.com]

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.

[skanrashke.livejournal.com]

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

[sableantelope.livejournal.com]

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)

[sableantelope.livejournal.com]

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!)

[skanrashke.livejournal.com]

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.

[sableantelope.livejournal.com]

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*