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

Grand Rapids, MI |

the terms and conditions were agreed to using a clickwrap

Attorney Answers 2


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.

Russ Brown

All information disclosed is for general discussion only. Attorney is not rendering a legal opinion nor is entering into an attorney client relationship, which requires an executed retainer agreement.

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The company is billing me $3500 dollars for posting a review. They are claiming I violated the non disparagement clause in the terms and conditions which was indeed a click wrap. They say if I don't pay they will send me to collections. Can they actually validate this debt? Don't they have to ?

Russell D. Brown

Russell D. Brown


My only response at this time is "Wow - that takes a lot of balls on their part." On these facts, and without reading your agreement, I personally don’t see that it is enforceable. The problem is, if they send you to collections, they can try and screw with your credit even if they haven’t sued you. Is this a personal purchase, or was this for a business? There are different constitutional standards for free speech for individuals (which is an almost absolute right to say almost anything) and businesses (which have curtailed speech rights.) I would print out the agreement and contact an attorney to have it reviewed. You may have agreed to all kinds of other stuff that you aren’t even aware of. Is this an American company or is it a foreign company? If you would like, I would be happy to review it, or if you would prefer, I can recommend a couple of good firms on your side of the state. Let me know. Russ Brown


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 represent you. Additional, the advice I have provided was based on the limited fact pattern provided by you. If the facts differ, my advice may not be correct. If you live in Michigan and would like legal assistance with your issue, feel free to contact me: 586-615-0756

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