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Hello ‘Non-Diss Closure’ Clauses, Goodbye Customer Service

Somewhere in this great land of ours, a young child heard his well-meaning parents utter the homily, “If you can’t say anything nice about someone, don’t say anything at all,” and thought, “By God, one day I am going to grow up to be a great Contracts Lawyer and make sure that this phrase is carved into the walls of our hallowed halls of justice, preferably right behind the judges’ bench.”

At least that’s how I imagine it came to pass that some attorney came up with the repugnant idea to slip non-disparagement clauses into service contracts, preventing consumers from criticizing or otherwise complaining online about the horrendous service they received from their dentist/dry cleaner/wedding planner, etc., lest they be sued, even if said criticism was true and deserved. Thereby elevating “sneaky contract clauses” over “truth” and “freedom of expression” in our hierarchy of cherished values.

That appears to be a recent little grotesquerie added to the ever-expanding “small print” in service contracts, as a means to stop disgruntled patrons from venting in forums like Yelp that the service provider was an incompetent, irresponsible no-goodnik, thereby negatively impacting the latter’s business.

According to MarketWatch, these “non-diss closure” clauses are increasingly being inserted into standard service contracts, to the complete obliviousness of the customer, who is not only then sued for sharing their unfortunate experience online, but, in at least one case where the customer refused to pay the company’s ensuing $3,500 “damages” claim, was reported for “derelict debt” to credit-reporting agencies.

Apparently the old adage “The customer is always right” is giving way to “The customer is always wrong, even when they’re right.”

Children, you may not believe me, but there was a time in America when customers would complain, and businesses would respond by fixing the problem rather than suing them!

Undoubtedly some customers post vitriolic reviews that are hyperbolic, if not outright false. But libel is already actionable. Plus, I suspect they are far out-weighed by the number of “false positive” Facebook “Likes,” self-promotional tweets and glowing reviews written by friends, family and gnomes on sites like Fiverr, who will post such huzzahs in exchange for five bucks. In any case, sites like Yelp, with over 50 million reviews on it, are aggregate. A lone customer’s vendetta will drown in the Sea of Positivity. Or something like that.

Under these clauses, a person can be found liable for testifying honestly under oath that they wrote a truthful review.

Speaking of our courts, if they adopt a similar approach, witnesses will be sworn in by asking, “Do you promise to tell the truth, the whole truth, and nothing but the truth, unless, like, it’s something negative?”

Once you get into hypothetical “where will this lead?” scenarios, it’s virtually impossible to come up with one where you could plausibly say, “That can’t happen!” Because these clauses are already that! Will you one day be sued for reporting that the restaurant where you ate has a sub-par health code ranking posted on its door? What about remarking that it’s deserved because the premises were filthy and the cook picked his nose? What about ranking the meal in the bottom 10%? 20%? 50%? What is the “actionable sue percentage?”

Aggressive enforcement of clauses like these could put comedians out of business overnight. We may yet live to see the day when a comic regales an audience with his tales of woe regarding the airlines, big box stores and the like, and is summarily handed summonses by a phalanx of lawyers sitting ringside.

The one bright spot in this is that it might lead to a resurgence in the fine art of sarcasm, masking negative reviews behind false praise, such as: “I want to thank Acme Photographers for coming late to our wedding and missing the ceremony. Now we’ll have to imagine it, which is much better than reality. Also, none of the guests could complain they looked old, because the photos were hopelessly out of focus.”

Or: “Thanks to Frita’s Bakery, from saving our guests from total embarrassment. After the delicious meal, provided by a different caterer, several of our guests exclaimed, ‘If I eat another bite, I’ll burst.’ Fortunately Frita’s cake was so tasteless and dry that the guests uniformly spit it out, saving them from exploding, or at least splitting their dresses.”

There’s also a loophole – at least so far – that you can’t be sued for writing about an experience that was told to you by someone. So presumably you could get away with “My friend say…,” thus making second-hand accounts more credible than first-hand ones.

Until this whole matter is settled, the next time you have a horrible retail experience, you might do well to remember another old adage: “A smile is just a frown turned upside down.”

Your comments are welcome. Attorneys are standing by.

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