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]

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*