Negative feedback left on a website proved a nightmare for Jen Palmer of Utah.

In 2008, Palmer’s husband purchased some gifts for her through KlearGear, an online merchant of geeky “desk toys.” But the merchandise never arrived, prompting Palmer to cancel the order and lodge a complaint with the company.

But getting a hold of a customer service representative at KlearGear proved frustrating, according to Palmer. So she posted a negative review of her experience on Ripoffreport.com, complaining that “there is absolutely no way to get in touch with a physical human being” at the company, and that they have “horrible customer service practices.”

Little did she know that her action left her liable for $3,500—the amount KlearGear charges any customer who agrees to the site’s terms and conditions, which included for a time this Non-Disparagement Clause:

“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,” the clause reads.

“Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.”

Palmer wasn’t billed for the $3,500 for three years. Once she learned about the fee, she tried to take down her negative review on Ripoffreport.com—but they charged $2,000 to do so.

So, the post stayed up, and KlearGear reported her to consumer credit agencies for not paying the fee, which dinged her credit.

Now, five years since the online purchase, KlearGear is still trying to get Palmer to pay the hefty fine. As a result of the company’s consumer credit complaint against them, Palmer and her husband have been denied loans for house repairs and a new car.

“This is fraud,” she told CBS Utah affiliate KUTV in an interview segment. “They’re blackmailing us for telling the truth.”

The TV station’s investigative reporter contacted KlearGear, which responded with an email saying there was no blackmail against the Palmers, rather “a diligent effort to help them avoid [the fine].”

Since Palmer’s ordeal went public, KlearGear has removed its Terms of Use from the site.

TechDirt, though, discovered that the non-disparagement term wasn’t even part of KlearGear’s site when Palmer wrote her negative review.

Still, “even if the term was included in an agreement between Palmer and KlearGear, the fact remains that a term in a contract of adhesion mandating a $3,500 fine for ‘any action that negatively impacts’ the drafter of the contract, determined at the drafter’s sole discretion, is unconscionable, and no court should enforce it,” Andrew Crocker and Kurt Opsahl wrote for the Electronic Frontier Foundation.

-Noel Brinkerhoff

To Learn More:

Shocking the Conscience: A $3,500 Fine for Writing a Negative Review (by Andrew Crocker and Kurt Opsahl, Electronic Frontier Foundation)

Online Retailer Says If You Give It A Negative Review It Can Fine You $3,500 (by Tim Cushing, Techdirt)

Fined For Posting A Negative Review Online (by Matt Gephardt, KUTV)