Friday, January 22, 2021
Nancy Kim posted last week about Parler's lawsuit against Amazon Web Services (AWS) for, among other things, breach of contract. Nancy's prediction was that Parler's chance of winning on its breach of contract claim didn't look good. Yesterday, U.S. District Court Judge Barbara Jacobs Rothstein agreed, denying Parler's motion for a temporary restraining order.
On the breach of contract claim, Judge Rothstein pretty much stuck to the Nancy Kim playbook. Parler alleged that AWS had breached its Customer Service Agreement (CSA) with Parler by failing to accord Parler thirty days to cure any alleged breaches of the CSA. Parler contends that it was given only a few hours' notice of breach before AWS suspended its web-hosting services. However, the CSA clearly gives AWS the right to suspend or terminate its services for material breach of the CSA's conditions, and Parler does not dispute that it did terminate those conditions by violating AWS's Acceptable Use Policy. AWS provided multiple examples of content posted on Parler that violated that Policy, which proscribes “'activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations or reputation'” and "'content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable.'”
Nancy Kim's post specifically noted Sections 4, 6, & 7 of the CSA. Here is Judge Rothstein's conclusion on the breach of contract claim:
Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP. It has therefore failed, at this stage in the proceedings, to demonstrate a likelihood of success on its breach of contract claim.
Good call, Nancy!