Can a merchant legally havein their terms & conditions that they can impose a pentalty fee if a consumer posts a negative review

Asked over 1 year ago - Grand Rapids, MI

the terms and conditions were agreed to using a clickwrap

Attorney answers (2)

  1. Russell D. Brown

    Contributor Level 9

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    Answered . Clickwrap agreements are presently an area for a lot of legal debate currently in the software licensing world. The content and form of clickwrap agreements vary widely. Most clickwrap agreements require the end-user to manifest his or her assent by clicking an "ok" or "agree" button on a dialog box or pop-up window. Traditionally they are thought of as a contract of adhesion (a legal term of art that means they are offered as a “take it or leave it” contract where there is no discussion or negotiation for the terms). While others may disagree, I would argue that they cannot prevent you from making negative, but truthful, comments about their product. This not only includes comments about how the software works, but of your overall opinion of it. There are many factors to this analysis, and I doubt if you were to put 10 attorneys into a room, who know anything about this developing area of the law, that you could get them to agree about it. The real test will be if you make comments and they try to sue you for breach of contract, corporate defamation, or some other similar theory. Whatever you say, I would recommend to be professional about how you say it. Stay tuned, I suspect that this will not be defined by the courts for a few years yet. Good luck.

    Respectfully,
    Russ Brown

    All information disclosed is for general discussion only. Attorney is not rendering a legal opinion nor is... more
  2. Reese Serra

    Contributor Level 13

    Answered . Respectfully, I disagree with Russell. I think you agreed to it and it is enforceable. This clause is similar to non-disparagement clauses that are found in many employment agreements in Michigan and elsewhere. Additionally, courts are generally disinclined to invalidate an express agreement that is legally and knowingly made. If you don't like the company, don't use their site. Best of luck - Reese Serra

    This advise is only being offered as a courtesy. We do not have an attorney-client relationship and I do not... more

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