What NOT to do when it comes to crisis management for negative reviews
While online reviews have exploded in popularity, and are given more credence than ever before, the actual laws addressing the topic are still a bit murky.
In what could become a precedent-setting case, online retailer KlearGear.com is being sued for retaliating against a couple who left a negative review on RipOffReport.com. John and Jen Palmer had purchased a couple of small items from the site back in 2008, and when the order never showed the pair struggled to get in touch with a real person at KlearGear. Frustrated by alleged poor customer service, Jen posted the bad review and moved on with life.
Fast forward three years, to the situation described in a BusinessInsider article by Hayley Peterson:
May 2012, John Palmer got an email from Kleargear.com demanding that the review be removed within 72 hours or he would be fined $3,500. The email reportedly cited Kleargear.com’s terms of sale, saying it included a non-disparagement clause that prohibits customers from “taking any action that negatively impacts” the company.
“If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation,” the clause read.
The Palmers didn’t pay the $3,500 (who would?!), and as a result KlearGear actually contacted credit bureaus, causing them to ding the couple’s credit to the point where they are now being denied loans and facing other financial repercussions.
If the stories we’ve heard thus far are true, we would be shocked if KlearGear wasn’t punished in a court of law for this absolutely disgusting approach to crisis management, and, as we discussed above, this case could set a legal precedent regarding consumer’s rights to post negative reviews on the ‘net. Although it defies common sense that a retailer could have the right to enforce a non-disparagement clause connected with a product sale!
We decided to pick the brains of one of our Bernstein Crisis Management contractors, Mark Weaver, of Communications Counsel, Inc., who happens to be both a crisis management pro and a top-notch attorney, to see what he had to say about the situation:
Non disparagement clauses are typically found in settlement agreements following a lawsuit, not a consumer sales agreement.
Indeed, several states have consumer protection laws that would make the inclusion of such anti-consumer language into what would otherwise be boilerplate language illegal.
When that happens, the resources of the state Attorney General’s office or other consumer advocate can be tapped to gain leverage against the company.
Although the laws of what can be said about a company on Internet review sites like Yelp or TripAdvisor are still evolving, truthful statements of none-private information made anywhere will typically have significant First Amendment protection.
Advancing such anti-consumer and questionable legal theories against an aggrieved consumer is poor crisis management to be sure.
Truth is, if you want to avoid negative reputation hits, you have to actually BE A GOOD COMPANY. Obviously KlearGear isn’t, and even if it somehow succeeds in having the Palmer’s lawsuit dismissed, articles like the BusinessInsider piece, and blog posts like this one, now litter the web, further spreading word of their inexcusable actions.
The BCM Blogging Team
https://www.bernsteincrisismanagement.com