Friday, July 24, 2020

Suing Facebook

The New Hampshire Supreme Court reversed and remanded the dismissal on motion of a small claims action brought against Facebook by an Instagram user whose account had been deleted

Teatotaller alleged that in June 2018, Facebook “deleted [Teatotaller’s] Instagram . . . account without notice.” Teatotaller further alleged that Facebook “sent two contradicting statements as to the reason for deletion and provided no appeal or contact to get more information.” Teatotaller also alleged that Facebook “had a duty of care to protect [Teatotaller] from an algorithmic deletion as it hampers [Teatotaller’s] business” and that Teatotaller has “continue[d] to lose business and customers due to [Facebook’s] negligence.” In addition to seeking $9,999 in damages, Teatotaller sought restoration of its Instagram account.

The case featured legal heavyweights against a non-lawyer

Emmett Soldati, non-lawyer representative appearing by approval of the Supreme Court under Rule 33(2), on the brief and orally, for the plaintiff.

Paul Frank + Collins P.C., of Burlington, Vermont (Stephen J. Soule on the brief); Keker, Van Nest & Peters, LLP, of San Francisco, California (Matan Shacham and Victor Chiu on the brief); and Primmer, Piper, Eggleston & Cramer, PC, of Manchester (Doreen F. Connor orally), for the defendant.

For now, David beat Goliath.


Following a hearing, the trial court granted Facebook’s motion, determining that the Terms of Use gave the court personal jurisdiction over Facebook, but also precluded Teatotaller’s claims. Specifically, the court  determined that, “given the language in the [Terms of Use],” Teatotaller “cannot state a claim or demonstrate any breach of contract that gives rise to a cause of action.” In response to Teatotaller’s subsequent motion to reconsider, the trial court stated that Facebook is entitled to immunity under the CDA for “the acts that are alleged by [Teatotaller].” This appeal followed.

On review

Teatotaller alleged that it entered into the Terms of Use with Facebook regarding Teatotaller’s use of Instagram in exchange for fees. Teatotaller further alleged that Facebook deleted Teatotaller’s Instagram account in violation of the Terms of Use, causing Teatotaller to “lose business and customers,” for which Teatotaller requested “damages and the restoration of [its] account.” Assuming the facts alleged by Teatotaller to be true, we hold that these allegations suffice in the context of a small claim action to state a cause of action for breach of contract.

Immunity under the Communications Decency Act

We next consider whether Facebook is entitled to immunity under the CDA for Teatotaller’s breach of contract claim.

...because it is not clear on the face of Teatotaller’s complaint and objection whether prong two of the CDA immunity test is met, we conclude that the trial court erred by dismissing Teatotaller’s breach of contract claim on such grounds. See Pirozzi, 913 F. Supp. 2d at 849. We simply cannot determine based upon the pleadings at this stage in the proceeding whether Facebook is immune from liability under section 230(c)(1) of the CDA on Teatotaller’s breach of contract claim. See id. For all of the above reasons, therefore, although Teatotaller’s breach of contract claim may ultimately fail, either on the merits or under the CDA, we hold that dismissal of the claim is not warranted at this time.

Footnote 2 in part

Because the parties have not yet litigated the issue, we express no opinion as to whether the trial court has authority to order Facebook to restore Teatotaller’s Instagram account in the context of this small claim action.

The web page of the plaintiff is linked here. (Mike Frisch)

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