Instagram Person’s Lawsuit Over Terminated Account Will get Revived (However Not For Lengthy)-Teatotaller v. Fb

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Want to Learn More About Section 230? A Guide to My Work

The plaintiff, a "Queer Hipster Oasis" tea / café in Somersworth, NH, claims that Instagram has canceled its account without notice. It sued Instagram before a small claims court for $ 9,999 and account recovery. There must be dozens or hundreds of similar lawsuits against social media services, and everyone will lose – even those filed with the Small Claims Court, which routinely bends back to help plaintiffs. Indeed, the judge for minor claims dismissed this action.

Apparently in New Hampshire, small claims appeal goes directly to the state's Supreme Court. The NH Supreme Court has an expedited procedure for non-priority decisions – I'm not sure why the court didn't apply this. The business owner competed without a lawyer against Facebook's four lawyers from three different law firms. (I'm not sure how / why New Hampshire makes an LLC appear without a lawyer in court, but that's just one of the many procedural shortcomings in this case.) It seems the deck has been massively stacked against the plaintiff … and yet …

Breach of contract. Facebook's terms of use stipulate that the company cannot be held responsible for lost profits or consequential damages. The Small Claims Judge stated that this provision negated the violation of contractual claims. The Supreme Court says the terms of use limit the damage to $ 100 (or the amount the plaintiff has received in the past 12 months). The Supreme Court finds that since the parties have agreed to limit damages, the plaintiff can go to court up to that amount (or more if the damages clause is not enforceable).

I'm not sure how the case got to this strange place. A waiver of consequential damage does not of course eliminate a contractual claim, although it can negate the damage substantially or completely. It is a little strange why the small claims judge relied on this provision to completely dismiss the lawsuit. Even with the second chance, the plaintiff cannot prove a breach of contract, receive compensation in excess of $ 100 (likely zero), or provide a certain service to restore the account. While the court revived the allegation, I see this as the Supreme Court determining what it saw as a guide to a minor claims judge's teaching, and Facebook should have no problem settling pre-trial detention.

§ 230. The court says 230 is an affirmative defense, which can, however, be granted if this is evident on the face of the appeal. The court conducts the standard test with three elements according to section 230:

  • ICS provider. The plaintiff admitted that Facebook is qualified, and the court quotes FAN against Facebook.
  • Third party content. The plaintiff's content is not the content of Facebook. Quoted to FAN v. Facebook, Fyk v. Facebook.
  • Editor / Spokesman Claim. The court provides a defense-related background and then summarizes:
    • "To the extent that Teatotaller's request is based on Facebook's decision to remove its" Instagram account, including all content, data and followers accumulated through paid and unpaid activities ", the court may appeal commit to treating Facebook as a publisher. " Quote from FAN v. Facebook.
    • "To the extent that Teatotaller's claim is based on certain promises made by Facebook in its terms of use, Teatotaller's claim cannot oblige the court to treat Facebook as the publisher." Quoted to Barnes v. Yahoo and Hiam v. HomeAway. Ugh, the reference to "certain promises in the Facebook terms of use" is an unfortunate choice of words. The court's quotes to FAN against Facebook confirm that the court knows and recognizes that FAN said that section 230 may preclude infringement claims. The court could have said more specifically that Section 230 promissory note is excluded – that was the literal involvement of Barnes – but I doubt that Instagram's terms of use could support promissory note coupling. The Hiam quote is even more frustrating. HomeAway won this case (both in the District Court and the Court of Appeals), and the District Court's opinion relied heavily on section 230 to eradicate most of the plaintiffs' claims. What exactly did the court want to differentiate from § 230 when preparing "specific promises"? Pooh.

The court rejects the question under section 230 because the plaintiff's complaint has ambiguously framed the infringement action. If the plaintiff cannot prove that Facebook made "specific promises", section 230 should presumably independently wipe out any infringement claims that would otherwise be tenable.

This is an excellent example of how a judicial system can benefit from an interim judicial review between a Small Claims Court and the Supreme Court. An interim review could have improved some of the pleading problems before the Supreme Court's time was taken up. An interim review could also have resulted in a more responsive opinion in the context of putting the NH Supreme Court review in context. Without this, I believe the NH Supreme Court makes its very first opinion on Section 230, which is supported by an opinion on minor claims and an unrepresented plaintiff. With this weak preparation, the Supreme Court has issued an essentially unchangeable legal interpretation of Section 230 for the state of New Hampshire.

The worst thing is that the Supreme Court has leaned back to assist a minor claimant whose case will undoubtedly fail. I understand why the judges give undisputed plaintiffs this kind of support – this helps preserve the veneer that the state judicial system strictly adheres to the “rule of law”. Still, the inaccuracy of the court regarding section 230 is an expensive long-term price to give the plaintiff another doomed iteration. Everyone would have benefited if the NH Supreme Court had found some reasons to confirm the small claims statement.

Case quote: Teatotaller LLC v Facebook, Inc., 2020 WL 4248507 (NH Supreme Ct. July 24, 2020)

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