- The Washington Times - Thursday, December 26, 2013

A Utah couple is facing $3,500 in fines and a damaged credit score after they posted a negative review online about a company they had tried to buy Christmas presents from several years ago.

In 2008, John Palmer bought his wife Jen gifts off KlearGear.com, but the company inexplicably canceled the sale and the items never arrived, CNNreported. The money was also returned to Mr. Palmer’s PayPal account.

After several failed attempts to reach a customer service rep, Mrs. Palmer posted a review on ripoffreport.com, saying in part,”There is absolutely no way to get in touch with a physical human being. No extensions work,” CNN reported.

It wasn’t until three years later that the couple received an email from KlearGear.com, demanding they remove the statement from ripoffreport.com within 72 hours, or else be fined $3,500.

The e-mail cited a non-disparagement clause that was apparently included in the terms of sale: “Your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com.”

The couple argues that the clause didn’t exist back in 2008, and website archives from 2008 don’t show the clause, a local CBS affiliate reported.

Jeff Hunt, a First Amendment attorney, told the station that the fine violates free speech.

“I think this is outrageous that a company like this would force a consumer to relinquish their First Amendment rights to speak about their product as a condition of sale,” he said. “I’ve never seen anything like it.

“I have a serious question about whether a court would enforce that kind of covenant because it’s massively over broad and against public policy,” he added.

KlearGear.com reported the Palmers to a collections company, and now the pair is having trouble getting approved for financing a new car.

The couple told CBS that they can’t afford a lawyer, but are still working to have the ding removed from their credit score.

According to CNN, legal experts warn that more companies are adding this type of language in the fine print.

A similar clause could be found on a vacation rental website, shoredreams.net, which threatened a charge of up to $10,000 for negative online reviews, but the clause was removed shortly after CNN reported it.