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A video report on CNN (click here to watch it) has aroused all sorts of questions about the safety of writing an honest review about a merchant whose products you've used. It told of a family that made an online purchase of a gift for their son which never arrived. They posted, on another website, a scathing description of the inefficiency and perhaps dishonesty of the company selling that gift, whereupon they were threatened with a lawsuit unless they paid a $3500 penalty to the company in question. That fine was based on a non-disparagement clause in the sales contract they had signed.
According to an attorney who was interviewed by CNN on the same video report, such clauses are occasionally enforced by courts if the contract in which they appear ia a "fair" one.
The entire event has relevance to the world of travel because of the increasing tendency of real estate brokers to insert non-disparagement clauses into the contracts they submit to a would-be renter of a vacation home or vacation apartment. Write and publish a critical review of your experience in that home or apartment and you can be served with a lawsuit seeking damages of as much as $10,000.
Are such clauses upheld in court? Is the question about whether the entire contract is "fair"? From my days in law school many years ago, I vaguely remember a concept known as a "contract of adhesion" that will be struck down by courts, dismissed and not enforced. A "contract of adhesion", as I dimly remember, is one that wasn't really negotiated between the parties, that consists of numerous small-type clauses that no one read and paid the slightest attention to, a lengthy indecipherable document that was simply handed to a member of the public on a "take it or leave it" basis, and that the courts refused to enforce. I assume this was the doctrine that, according to the lawyer interviewed by CNN, would protect that family against the unconscionable lawsuit and penalty with which they were threatened.
Nevertheless, it's important not to put yourself in such a position. When you rent a vacation home or vacation apartment, and are asked to sign a contract, glance through it to determine whether there's a non-disparagement clause. And if there is, strike it out and initial your disagreement with it. In my experience, the landlord will not insist that it continue to appear.
In a related field, what are your risks in writing a disparaging, critical comment about a hotel or restaurant you've patronized, and which you've then criticized in an online comment? The Supreme Court has consistently held that a libel suit can not be maintained against an "opinion". Express an opinion, and you are fully protected by the First Amendment against a lawsuit for libel or slander.
But what if yours' was a fake opinion? Suppose you never stayed at the hotel in question, or eaten at the restaurant you've criticized? In that case, I feel fairly certain that many courts will permit you to be sued--and that decision would be approved by virtually everyone.
So watch yourself. Express an honest opinion if you validly believe in the good faith of your expression. But don't make up the facts. Don't willingly distort the facts. Make a good faith effort to properly determine whether the facts you've stated are true ones.
A book I once wrote was violently attacked in an online comment by a person who falsely claimed that I had a financial interest in a hotel chain that I had complimented (a hotel chain with which I had not the slightest connection, just as I have no such interest or connection with any hotel chain). Believe me, I was tempted to do something violent in return, like a lawsuit, but my attention soon passed on to more worthy matters.
It's important to realize, nevetheless, that the "opinion" protection of the First Amendment does not apply to false statements or to dischonest statements. So regardless of how you feel about Donald Trump (@#%%$#!!), don't make up a false account of an unhappy stay at one of his hotels. And if you're presented with a contract that you're asked to read carefully, and that both sides have painstakingly negotiated, and which contains a non-dispargement clause that you have not blacked-out, be prepared to pay the consequences.
