CHOICE is looking into the increasingly common practice of businesses asking consumers to sign a non-disclosure agreement - or gag order - in order to get a refund, repair or replacement for a product that didn’t work. Has this happened to you or someone you know?
Is that legal @AndyKollmorgen? If you have a statutory right to get a refund etc then they surely can’t put conditions on providing remediation can they?
No they can’t - and the NDAs we’ve reviewed don’t specifically say “sign this or you don’t get a refund”. But they strongly imply that, and some consumers we’ve been in touch with have signed because they just wanted to resolve the issue and be done with it - which seems to be the intent of the NDA tactic. It’s a frightening - you might even say bullying - legal document for most people, obligating the customer to never criticise the company forevermore, especially online. Whether they’re enforceable is another matter. If they conflict with your Australian Consumer Law rights, they’re not.
thank you for clarifying @AndyKollmorgen
I fell for it. Not allowed to tell you that.
Thanks for getting in touch. If you signed an NDA and don’t want to talk about it for fear of legal consequences, that’s understandable. But if you received one, didn’t sign it, and are willing to talk about the experience publicly, we’d love to hear from you. We’re looking for someone to tell their story so we can put a human face on the receiving end of this shoddy practice and test its legality.
I signed. No-one to discuss it with. Really needed to replace an item & the prices were going up. I believed I was required to do it. Don’t know where I got that idea. More fool me. I was over a barrel. I didn’t have time to query it.
I was told that even if you sign a non-disclosure, you cannot legally be prevented from disclosing information to relevant government bodies that oversee the field of complaint. For example: If a dispute with a builder is resolved with a solution conditional to a non-disclosure, you cannot legally be prevented from criticising or following up with organisations such as VCAT, Victorian Building Authority, Building Practitioners Board or the Ombudsman. Is this correct?
You are correct inasmuch as disclosing information to a relevant government body is your right under the Australian Consumer Law and those rights cannot be superseded by a gag order. When a non-disclosure agreements conflicts with your rights under the ACL, the ACL takes precedence.