Non-Disparagement Clauses and Social Media

How Does The Consumer Review Fairness Act of 2016 Affect Your Business

If you are in business, and are concerned about protecting your reputation against negative “reviews” or other disparaging, slanderous, or damaging content posted on social media (Facebook, etc), you need to familiarize yourself with the new law.  Violations carry serious penalties.

A quick overview:  If you have a website that sells consumer goods and merchandise, your terms and conditions CANNOT contain a “non-disparagement” clause.  If however, you are an independent contractor (lawn maintenance, wedding photographer, contractor), your business falls within the exception to the statute and you are permitted to include a non-disparagement clause in your contracts.

Here is a sample of a non-disparagement clause:

The parties to this Contract agree to refrain from disparaging the other party in any manner, and in any format, verbal, written or digital, nor otherwise take any action which could reasonably be expected to adversely affect the other party’s personal or professional reputation. The parties agree that damages to said party’s reputation caused by any such disparagement would be difficult or impossible to measure and agree to liquidated damages in the amount of $5000 to be awarded to the party against whom such disparagement was committed by any court of law having jurisdiction over the parties and the subject matter herein.

There is no protection against “opinion”- people have a First Amendment right to express their opinion- positive or negative- on social media.  However, including a non-disparatement clause in your contract will make someone think twice before posting “negative” comments that are untruthful. Oftentimes, merely having an attorney send a “take-down” notice under threat of facing litigation will result in your falsely-negative comments being removed from the Internet, where these comments can otherwise “live forever”.  Other times, you may need to resort to litigation to force the offending party to remove the false comments.  You spent years building up your business and your business reputation.  Don’t let falsely-negative comments on social media destroy all you have built.  You have rights and remedies at your disposal to effectively and efficiently address the issues.  Call Stern Law Offices for more information.

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