Thank you Dean. IAAL. You spared me a lengthy reply.
Erik On Jan 10, 2015, at 11:17 AM, Dean Landsman <
">
> wrote:
Dave,
Reading John's original post in this thread, it appears the
conversation has gone adrift. From the first paragraph of that post:
California has just enacted a law that prohibits
‘non-disparagement clauses’. These are clauses in consumer
contracts that prohibit the consumer from criticising the
product or services provided under the contract.
Taking it a step further (and clicking on the link John posted), it
reads like this, the very first line of the legislative notice :
The people of the State
of California do enact as follows:
SECTION 1.
Section 1670.8 is added to the Civil Code, to read:
1670.8.
(a) (1) A contract or proposed contract for the sale
or lease of consumer goods or services may not include
a provision waiving the consumer’s right to make any
statement regarding the seller or lessor or its
employees or agents, or concerning the goods or
services.
The preamble to the enactment defines (somewhat loosely, IMHO) it
this way:
This bill would prohibit a contract or proposed
contract for the sale or lease of consumer goods or services
from including a provision waiving the consumer’s right to make
any statement regarding the seller or lessor or its employees or
agents, or concerning the goods or services. The bill would make
it unlawful to threaten or to seek to enforce, a provision made
unlawful under the bill, or to otherwise penalize a consumer for
making any statement protected under the bill.
It refers to consumer contracts, not to business (or B2B)
contracts. Nor does it refer to legal agreements directly between
parties.
So if one should, say, rent a car or fly United, and have a bad
experience, that language means the consumer is free to write a
letter to a travel magazine, or post on a blog
or a site
where people sound off about such
things.
Non-disparagement is standard in language used to settle disputes.
It is also used at times in engagement letters.
I know a journalist who turned down a job because the employment
contract prohibited him from speaking ill of the employer for 99
years after he would have departed the company. In my own case a
few years ago I had to sue a client for payment, and once they gave
in and agreed to pay in full what they owed to my firm ... guess
what? They made a non-disparagement clause a demand. Rather than
waste any further time or money on legal action, I agreed to that.
What this bit of civil code refers to, it seems to me and IANAL, is
the right to go public if a dead mouse (or, worse, live!) comes out
of the Wheaties box you bought at A&P. Or if the down time with
your internet provider (say, uh, Verizon, to cite but one) is
terrible and you run into nothing but blockage trying to get that
time credited on your bill -- as a consumer you have every right to
do so.
The consumer side is not about privacy, it is about freedom of
speech. And protecting that freedom for consumers at large. Well,
in this case, at large in California.
Much of the thread drift seems to conflate privacy with speech. In
the case of the California Legislature action John cited, it is not
about privacy. It is about protecting the rights of consumers
("buyers or lessors") to have free speech.
--Dean
On 1/10/2015 8:20 AM, Dave Gray wrote:
" type="cite">Crosbie, it sounds like you want to do away with
secrets.
Keeping secrets (and telling lies) is something humans
do. I'm not going to speculate whether we have a "natural right"
to do so. But we do it.
The reason we have contracts and laws in the first place is
to make commitments or promises to each other that are to some
degree enforceable.
If someone tells me something and asks me to keep it
confidential, and I promise to do so, that's a secret. That
they reveal their secret to me is a sign of trust. If I keep
the secret that is also a sign of trust. If we sign an
agreement, that signifies a further commitment to make the
promises legally binding.
I may have an inalienable right to say what I want. If
you tell me something in confidence, i agree there is no
natural force or constraint that stops me from revealing it.
If I do, however, that destroys trust.
Trust is a pretty important thing when it comes to
working together. It involves making and keeping promises.
You may say that I don't have a "natural right"
to expect people to keep their promises and commitments.
However it seems to me that such expectations are
foundational to doing business. If I can't expect you to
come to work on time, for example, how can we operate? If I
don't keep my promise to pay you at the end of the week, how
can we operate? If you give me a loan, we will have terms,
and I expect I will have to pay you back. I suppose I
have have a "natural right" not to pay you back, but there
will be consequences. If nothing else our mutual trust will
be reduced.
If I understand your position on natural rights
correctly, then I can only maintain my natural right to a
secret by keeping it to myself. I don't need a contract for
that.
The ONLY time we need contracts or legal agreements is
for promises and commitments where we DO NOT have a "natural
right." For things we DO have a "natural right" to, we
do not need promises or contracts at all.
Dave
On Saturday, January 10, 2015, Crosbie Fitch <
">
>
wrote:
It should simply be a matter of
everyone being immediately able to recognise of
the invalidity of any contract that purports to
alienate a party from their right to speak.
The trouble is, if they emphasised
that, then they'd have to do away with
non-disclosure clauses too.
Hence, they now have to make discrete
laws regarding when it is, or is not, ok to have
the gullible believe they can sign away their
inalienable liberty - and hope not too many people
notice anything peculiar.
No doubt 'non-dissemination of
personal data' clauses will be judged as good and
wholesome as 'non-disclosure of IP' clauses, etc.
VRM doesn't require any such clauses,
although many believe it does.
From: Wunderlich,
John [mailto:
');" target="_blank">
]
Sent: Friday, 9 January 2015 4:53pm
To: ProjectVRM list
Subject: [projectvrm] Is non-disparagement
anti-VRM?
On another list, this was
posted:
California
has just enacted a law that
prohibits 'non-disparagement clauses'. These
are clauses in consumer contracts that
prohibit the consumer from criticising the
product or services provided under the
contract.
Specifically,
the statute says this: "a
contract or proposed contract for the sale or
lease of consumer goods or services may not
include a provision waiving the consumer's
right to make any statement regarding the
seller or lessor or its employees or agents,
or concerning the goods or services."
Non-disparagement
clauses seem pretty anti-VRM to me.
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Dave Gray
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