Here’s the background, according to Paul Alan Levy of Public Citizen.
The customer found what she’d believed was the ideal donor in the company’s online database, and so she sent them a sizable check for their fee. After receiving payment, the company then said that the selected donor had backed out.
Since the customer couldn’t get the donated eggs she’d paid for, she requested a refund, but the company only offered to allow her to select from another donor in their database.
Feeling like she was being taken for a ride, the woman filed a complaint with the Better Business Bureau.
Now, contrary to what some believe, the BBB has no actual authority and companies are not legally required to respond or take action to complaints. But while some companies might completely ignore this sort of filing, the fertility service went ballistic.
“You directly violated our legal agreement by attempting to post an online review,” reads a letter to the customer. “As such, we are setting the plans in motion for a multi-million dollar defamation case against you…. unless you withdraw your unwarranted BBB complaint or any illegal online reviews, we will proceed at lightening [sic] speed in a defamation case against you to minimize as much damage as possible. We have your signed legal agreement clearly stating you will NOT post online reviews.”
Granted, the customer’s written agreement [PDF] with the service does state that customers “agree NOT [caps in original] post any online reviews anywhere on the Internet without first presenting it” for legal review to the fertility service.
As Levy notes, the response from the fertility service gives no indication as to what the company believes is false or defamatory about the BBB filing.
But this clause in the service’s contract isn’t meant to apply to only negative or false reviews; it also covers positive reviews.
“Even good reviews can be misconstrued and hurt potential business,” reads the agreement, which also includes a barely veiled warning against trying to post something anonymously. “There are truly no anonymous reviews because web sites that post them, if they receive a complaint, will be required to show the real identity of the poster and with a court order will be forced to remove the post until the facts are revealed.”
Except… that’s not really true. Getting a court order to remove the post before the “facts are revealed,” would be an example of prior restraint. And as Walter Sobchak has previously, if loudly, pointed out, the U.S. Supreme Court has not exactly been a fan of prior restraint.
There were more clumsy contradictions in the fertility service’s customer agreement and its letters to this unhappy customer.
The first notice threatened a “multi-million dollar defamation case” against the woman. But per the agreement, any disputes that can’t be resolved through mediation must go into binding arbitration, and that the customer’s contract is “governed and interpreted by California jurisdiction,” meaning the arbitration would need to take place in California.
Thing is, California outlawed these sorts of anti-disparagement clauses in 2014, meaning the clause can’t be enforced.
Earlier this month, Levy wrote [PDF] to the fertility service on behalf of the customer, explaining the various legal problems with their threats of expensive litigation. He also stated the customer was fine with having her BBB filing “reviewed” by the fertility service’s legal team.
Subsequent responses from the company revealed that it had no intention of providing a lawyer to do this review, and it had still not explained what was defamatory about the customer’s statement.
As Levy notes, companies don’t need non-disparagement clauses to protect them from defamation. That’s why slander and libel laws exist.
Companies only use these sort of bullying tactics as a way to chill any speech about their products and services.
In April, members of Congress tried once again to introduce federal legislation that would outlaw non-disparagement clauses nationwide, but even though this version of the bill was sponsored by powerful California Representative Darrell Issa, it has been sitting untouched in committee since being introduced in April.
More recently, a Senate version of this legislation was introduced by Sen. John Thune of South Dakota. GovTrack gives this one a slightly better — but still slim — chance of being enacted.
by Chris Morran via Consumerist