IN CASE YOU MISSED IT

Read the fine print before you click 'I agree'

This story was first published in The Straits Times on Dec 4, 2013

ANYONE who has ever bought anything online has probably blindly clicked "I agree" without reading the pages upon pages of legalese they are signing off on.

But a recent case of a woman fined US$3,500 (S$4,400) by online gadget and gifts retailer KlearGear.com for writing a bad review is shining the spotlight on these little-read sales agreements.

Ms Jen Palmer, 40, an executive assistant, wrote the bad review on a consumer watchdog website in 2008, after gifts her husband bought her did not arrive and she failed to contact anybody at KlearGear.com.

Some 31/2 years later, the couple received an e-mail from the retailer asking them to remove the critical post. When the site Ripoff Report refused to let them take down the report, KlearGear billed them US$3,500 - a charge they have been fighting since.

What they had missed was a clause in the fine print on the site stating: "In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees."

To make matters worse, the non-disparagement clause did not exist when the purchase was made at the retailer, which has annual revenue of US$47 million.

When Ms Palmer's story came to light over the weekend - the busiest shopping weekend of the year in the US - there was a fierce backlash against KlearGear.com, so much so that the company had to shut down its Facebook and Twitter accounts. The offending clause has also been removed.

The retailer could not be contacted on any of its listed phone numbers. But it did defend its actions to a CNN affiliate earlier. It said its e-mail to the Palmers was a "diligent effort" to help them avoid the fine.

Consumer watchdogs expect more firms to include such non- disparagement terms in their sales agreements as online reputation becomes increasing important.

Already, the attention on the Palmers has highlighted a few other cases. At least two vacation rental sites have sales agreements that prevent users from criticising them and there has been a case of a dentist who made her patients sign non-disclosure agreements.

Lawyers say such attempts at protecting a reputation may not hold up in court. Attorney Scott Michelman from the Washington- based non-governmental organisation Public Citizen has taken up the Palmer case pro bono. It has sent KlearGear.com a letter of demand to rescind the charge, pay US$75,000 in compensation and to stop using the clause.

"No consumer would expect that just by using a website to buy a product, they would be giving up their right to criticise the company online," he told The Straits Times, adding that "courts would not enforce that".

"I hope that cases like this and the notoriety that they have generated will deter other bad actors in the marketplace from trying to chill online speech and take advantage of customers," he added.

Lawyers in Singapore agree that such sales terms would not hold up.

Mr Bryan Tan, a partner at law firm Pinsent Masons, cited the Consumer Protection Act, which states that an unfair practice includes "taking advantage of a consumer by including in an agreement terms or conditions that are harsh, oppressive or excessively one-sided so as to be unconscionable". He noted other laws, including the Unfair Contract Terms Act, that will protect buyers.

Still, experts advise consumers to read the sales agreements or, at the very least, research the retailers they are buying from.

Mr Tan recalled there was an online game company that "once inserted in the terms and conditions (a clause) to sell your soul... and 7,500 clicked OK".

jeremyau@sph.com.sg

This story was first published in The Straits Times on Dec 4, 2013

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