Advertising

Anette B.

Pro Se’s kitchen sink approach results in a loss – Lloyd v. Facebook

The “kitchen sink approach” isn’t an uncommon complaint claim strategy when it comes to filing lawsuits against platforms. Notwithstanding decades of precedent clearly indicating that such efforts are doomed to fail, plaintiffs still give it the ole’ college try. Ironically, and while this makes more sense with pro se plaintiffs because they don’t have the same legal training and understanding of how to research case law, pro se plaintiffs aren’t the only ones who try it … no matter how many times they lose. Indeed, even some lawyers like to get paid to make losing arguments. [Insert the hands up shrug emoji here].

Plaintiff: Susan Lloyd

Defendants: Facebook, Inc.; Meta Platforms, Inc.; Mark Zuckerberg (collectively, “Defendants”)

In this instance Plaintiff is a resident of Pennsylvania who suffers from “severe vision issues”. As such, she qualified as “disabled” under the Americans with Disabilities Act (“ADA”). Ms. Lloyd, like approximately 266 million other Americans, uses the Facebook social media platform, which as my readers likely know, is connected to, among other things, third-party advertisements.

While the full case history isn’t recited in the Court’s short opinion, it’s worth while to point out (it appears anyway with the limited record before me at this time) that the Plaintiff was afforded the opportunity to amend her complaint multiple times as the Court cites to the Third Amended Complaint (“TAC”). According to the Court Order, the TAC alleged claims violations of:

Plaintiff alleged problems with the platform – suggesting it inaccessible to disabled individuals with no arms or problems with vision (and itemized a laundry list of issues that I won’t cite here … but suffice it to say that there was a complaint about the font size not being able to be made larger). [SIDE NOTE: For those that are unaware, website accessibility is a thing, and plaintiffs can, and will, try to hold website operators (of all types, not just big ones like Facebook) accountable if they deem there to be an accessibility issue. If you want to learn a little more, you can read information that is put out on the Beebe Law website regarding ADA Website Compliance.]

Plaintiff alleged that the advertisements on Facebook were tracking her without her permission … except that users agree to Facebook’s Terms of Service (which presumably allow for that since the court brought it up). I’m not sure at what point people will realize that if you are using something for free, you ARE the product. Indeed, there are many new privacy laws being put into place throughout various states (e.g., California, Colorado, Utah, Virginia and Connecticut) but chances are, especially with large multi-national platforms, they are on top of the rules and are ensuring their compliance. If you aren’t checking your privacy settings, or blocking tracking pixels, etc., at some point that’s going to be on you. Technology gives folks ways to opt out – if you can locate it. I realize that sometimes these things can be hard to find – but often a search on Google will land you results – or just ask any late teen early 20s person. They seem to have a solid command on stuff like this these days.

Plaintiff also alleged that Defendants allowed “over 500 people to harass and bully Plaintiff on Facebook.” The alleged allegations of threats by the other users are rather disturbing and won’t be repeated here (though you can review the case for the quotes). However, Plaintiff stated that each time that she reported the harassment she, and others, were told that it didn’t violate community standards. There is more to the story where things have allegedly escalated off-line. The situation complained about, if true, is quite unsettling … and anyone with decency would be sympathetic to Plaintiff’s concerns.

[SIDE NOTE: Not to suggest that I’m suggesting what happened, if true, wasn’t something that should be looked at and addressed for the future. I’m well aware that Facebook (along with other social media) have imperfect systems. Things that shouldn’t be blocked are blocked. for example, I’ve seen images of positive quotes and peanut butter cookies be blocked or covered from initial viewing as “sensitive”. On the other hand, I’ve also seen things that (subjectively speaking but as someone who spent nearly a decade handling content moderation escalations) should be blocked, that aren’t. Like clearly spammy or scammer accounts. We all know them when we see them yet they remain even after reporting them. I’ve been frustrated by the system myself … and know well both sides of that argument. Nevertheless, if one was to take into account the sheer volume of posts and things that come in you’d realize that it’s a modern miracle that they have any system for trying to deal with such issues at all. Content moderation at scale is incredibly difficult.]

Notwithstanding the arguments offered, the court was quick to procedurally dismiss all but the breach of contract claim because the claims were already dismissed prior (Plaintiff apparently re-plead the same causes of action). More specifically, the court dismissed the ADA and Rehabilitation claim because (at least under the 9th Cir.) Facebook is not a place of public accommodation under Federal Law. [SIDE NOTE: there is a pretty deep split in the circuits on this point – so this isn’t necessarily a “get out of jail free” card if one is a website operator – especially if one may be availing themselves to the jurisdiction of another circuit that wouldn’t be so favorable. Again, if you’re curious about ADA Website Compliance, check out the Beebe Law website]. Similarly, Plaintiff’s Unruh Act claim failed because the act doesn’t apply to digital-only website such as Facebook. Plaintiff’s fraud and intentional misrepresentation claims failed because there wasn’t really any proof that Facebook intended to defraud Plaintiff and only the Terms of Service were talked about. So naturally, if you can’t back up the claims, it ends up being a wasted argument. Maybe not so clear for Pro Se litigants, but this should be pretty clear to lawyers (still doesn’t keep them from trying). Plaintiff’s claims for invasion of privacy, negligence, and negligent infliction of emotional distress failed because they are barred by Section 230 of the Communications Decency Act, 47 U.S.C. § 230. Again, this is another one of those situations where decades of precedent contrary to a plaintiff’s position isn’t a deterrent from trying to advance such claims anyway. Lastly, the claims against Zuckerberg were dismissed because Plaintiff didn’t allege that he was personally involved or directed the challenged acts (i.e., he isn’t an “alter ego”).

This left the breach of contract claim. Defendants in this case argued that Plaintiff’s claim for breach of contract should be dismissed because the Court lacks diversity jurisdiction over the claim because she cannot meet the amount in controversy. As the Court explains, “28 U.S.C. §1332 grants federal courts’ original jurisdiction over civil actions where the amount in controversy exceeds $75,000 and the parties are citizens of different states.” Indeed, they are parties are from different states, however, that requirement that the amount in controversy is to exceed $75,000 is where Plaintiff met an impossible hurdle. As discussed prior, users of Facebook all agree to Facebook’s Terms of Service. Here, Plaintiff’s claim for breach of contract is based on conduct of third-party users and Facebook’s Terms of Service disclaim all liability for third-party conduct. Further, the TOS also provide, “aggregate liability arising out of.. .the [TOS] will not exceed the greater of $100 or the amount Plaintiff has paid Meta in the past twelve months.” Facebook having been around the block a time or two with litigation have definitely refined their TOS over the years to make it nearly impenetrable. I mean, never say never, BUT…good luck. Lastly, the TOS precludes damages for “lost profits, revenues, information, or data, or consequential, special indirect, exemplary, punitive, or incidental damages.” Based upon all of these issues, there is no legal way that Plaintiff could meet the required amount in controversy of $75,000. The Court dismissed the final remaining claim, breach of contract, without leave to amend, although the court did add in “[t]he Court expresses no opinion on whether Plaintiff may pursue her contract claim in state court.” One might construe that as a sympathetic signal to the Plaintiff (or other future Plaintiffs)…

There are a few takeaways from this case, in my opinion:

  1. Throwing garden variety kitchen sink claims at platforms, especially ones the size of Facebook, is likely to be a waste of ink on paper on top of the time it takes to even put the ink on the paper in the first place. If you have concerns about issues with a platform, engage the services of an Internet lawyer in your area that understands all of these things.
  2. Properly drafted, and accepted, Terms of Service for your website can be a huge shield from liability. This is why copying and pasting from some random whatever site or using a “one-size-fits-all” free form from one of those “do-it-yourself” sites is acting penny wise and pound foolish. Just hire a darn Internet lawyer to help you if you’re operating a business website. It can save you money and headache in the long run – and investment into the future of your company if you will.
  3. Website Accessibility, and related claims, is a thing! You don’t hear a lot about it because the matters don’t typically make it to court. Many of these cases settle based upon demand letters for thousands of dollars and costly remediation work … so don’t think that it can’t happen to you (if you’re operating a website for your business).

Citation: Lloyd v. Facebook, Inc., Case No. 21-cv-10075-EMC (N.D. Cal, Feb. 7, 2023)

DISCLAIMER: This is for general information only. This is not legal advice nor should it be relied upon as such. If you have concerns regarding your own specific situation, be sure to reach out to an attorney in your jurisdiction who may be able to advise you of your rights.

Advertisement
Anette B.

GoDaddy not liable for third-party snagging prior owned domain – Rigsby v. GoDaddy Inc.

This case should present as a cautionary tale of why you want to ensure you’ve got your auto-renewals on, and you’re ensuring the renewal works, for your website domains if you plan on using them long term for any purpose. Failing to renew timely (or ensuring there is actual renewal) can have unintended frustrating consequences.

Plaintiffs-Appellants: Scott Rigsby and Scott Rigsby Foundation, Inc. (together “Rigsby”).

Defendants-Appellees: GoDaddy, Inc., GoDaddy.com, LLC, and GoDaddy Operating Company, LLC and Desert Newco, LLC (together “GoDaddy”).

Scott Rigsby is a physically challenged athlete and motivational speaker who started the Scott Rigsby Foundation. In 2007, in connection with the foundation he registered the domain name “scottrigsbyfoundation.org” with GoDaddy.com. Unfortunately, and allegedly as a result of a glitch in GoDaddy’s billing system, Rigsby failed to pay the annual renewal fee in 2018. In these instances, typically the domain will then be free to purchase by anyone and this is exactly what happened – a third-party registered the then-available domain name and turned it into a gambling information site. Naturally this is a very frustrating situation for Rigsby.

Rigsby then decided to sue GoDaddy for violations of the Lanham Act, 15 U.S.C. § 1125(a) (which for my non-legal industry readers is the primary federal trademark statute in the United States) and various state laws and sought declaratory and injunctive relief including return of the domain name.

This legal strategy is most curious to me because they didn’t name the third-party that actually purchased the domain and actually made use of it. For those that are unaware, “use in commerce” by the would be trademark infringer is a requirement of the Lanham Act and it seems like a pretty long leap to suggest that GoDaddy was the party in this situation that made use of subject domain.

Rigsby also faced another hurdle, that is, GoDaddy has immunity under the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) (“ACPA”). The ACPA limits the secondary liability of domain name registrars and registries for the act of registering a domain name. Rigsby would be hard pressed to show that GoDaddy registered, used, or trafficked in his domain name with a bad faith intent to profit. Similarly, Rigsby would also be hard pressed to show that GoDaddy’s alleged wrongful conduct surpassed mere registration activity.

Lastly, Rigsby faced a hurdle when it comes to Section 230 of the Communications Decency Act, 47 U.S.C. § 230. I’ve written about Section 230 may times in my blogs, but in general Section 230 provides immunity to websites/platforms from claims stemming from the content created by third-parties. To be sure, there are some exceptions, including intellectual property law claims. See 47 U.S.C. § 230(e)(2) there wasn’t an act done by GoDaddy that would fairly sit square within the Lanham Act such that they would have liability. So this doesn’t apply. Additionally, 47 U.S.C. § 230(e)(3) preempts state law claims. Put another way, with a few exceptions, a platform will also avoid liability from various state law claims. As such, Section 230 would shield GoDaddy from liability for Rigsby’s state-law claims for invasion of privacy, publicity, trade libel, libel, and violations of Arizona’s Consumer Fraud Act. These are garden variety tort law claims that plaintiff’s will typically assert in these kinds of instances, however, plaintiffs have to be careful that they are directed at the right party … and it’s fairly rare that a platform is going to be the right party in these situations.

The District of Arizona dismissed all of the claims against GoDaddy and Rigsby then appealed the dismissal to the Ninth Circuit Court of Appeals. While sympathetic to the plight of Rigsby, the court correctly concluded, on February 3, 2023, that Rigsby was barking up the wrong tree in terms of who they named as a defendant and appropriately dismissed the claims against GoDaddy.

To read the court’s full opinion which goes into greater detail about the facts of this case, click on the citation below.

Citation: Rigsby v. GoDaddy, Inc., Case No. 21016182 (9th Cir. Feb. 3, 2023)

DISCLAIMER: This is for general information only. None of this is meant to be legal advice nor should it be relied upon as such.

Anette B.

Section 230 doesn’t protect against a UGC platform’s own unlawful conduct – Fed. Trade Comm’n v. Roomster Corp

This seems like a no-brainer to anyone who understands Section 230 of the Communications Decency Act but for some reason it still hasn’t stopped defendants from making the tried and failed argument that Section 230 protects a platform from their own unlawful conduct.

Plaintiffs: Federal Trade Commission, State of California, State of Colorado, State of Florida, State of Illinois, Commonwealth of Massachusetts, and State of New York

Defendants: Roomster Corporation, John Shriber, indivudally and officer of Roomster, and Roman Zaks, individually and as an officer of Roomster.

Roomster (roomster.com) is an internet-based (desktop and mobile app) room and roommate finder platform that purports to be an intermediary (i.e., the middle man) between individuals who are seeking rentals, sublets, and roommates. For anyone that has been around for a minute in this industry, you might be feeling like we’ve got a little bit of a Roommates.com legal situation going on here but it’s different. Roomster, like may platforms that allows third-party content also known as User Generated Content (“UGC”) platforms, does not verify listings or ensure that the listings are real or authentic and has allegedly allowed postings to go up where the address of the listing was a U.S. Post Office. Now this might seem out of the ordinary to an every day person reading this, but I can assure you, it’s nearly impossible for any UGC platform to police every listing, especially if they are a small company and have any reasonable volume of traffic and it would become increasingly hard to try and moderate as they grow. That’s just the truth of operating a UGC platform.

Notwithstanding these fake posting issues, Plaintiffs allege that Defendants have falsely represented that properties listed on the Roomster platform are real, available, and verified. [OUCH!] They further allege that Defendants have created or purchased thousands of fake positive reviews to support these representations and placed fake rental listings on the Internet to drive traffic to their platform. [DOUBLE OUCH!] If true, Roomster may be in for a ride.

The FTC has alleged that Defendants’ acts or practices violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a) (which in layman terms is the federal law against unfair methods of competition) and the states have alleged the various state versions of deceptive acts and practices. At this point, based on the alleged facts, it seems about right to me.

Roomster filed a Motion to Dismiss pursuant to Rule 12(b)(6) for Plaintiffs alleged failure to state a claim for various reasons that I won’t discuss, but you can read about in the case, but also argued that “even if Plaintiffs may bring their claims, Defendants cannot be held liable for injuries stemming from user-generated listings and reviews because … they are interactive computer service providers and so are immune from liability for inaccuracies in user-supplied content, pursuant to Section 230 of the Communications Decency Act, 47 U.S.C. § 230.” Where is the facepalm emoji when you need it? Frankly, that’s a “hail-mary” and total waste of an argument … because Section 230 does not immunize a defendant from liability from its own unlawful conduct. Indeed, a platform can be held liable for for offensive content on its service or system if it contributes to the development of what makes the content unlawful. This is also true where a platform has engaged in deceptive practices, or has had direct participation in a deceptive scheme. Fortunately, like many courts before it, the court in this case saw through the crap and rightfully denied the Motion to Dismiss on this (and other points).

I smell a settlement in the air, but only time will tell.

Case Citation: Fed. Trade Comm’n v. Roomster Corp., Case No. 22 Civ 7389 (S.D. N.Y., Feb. 1, 2023)

DISCLAIMER: This is for general information only. None of this is meant to be legal advice nor should it be relied upon as such.

Anette B.

“Internet Law” explained

For some reason, every time one says “lawyer” people tend to think of criminal law, family law or personal injury law.  Perhaps because those are very common.  Most people even understand the concept of a corporate or business lawyer, someone who handles trust and estates, or even one that handles intellectual property.  However, when we say “Internet Law” many people get the most confused look on their face and say: “What the heck is that?” If that is you, you’re in good company.  And, to be fair, the Internet really hasn’t been around all that long.

If you were to read the “IT law” page on Wikipedia you’d see a section related to “Internet Law” but even that page falls a little short on a solid explanation – mostly because the law that surrounds the Internet is incredibly vast and is always evolving.

When we refer to “Internet Law” we are really talking about how varying legal principles and surrounding legislation influence and govern the internet, and it’s use.  For example, “Internet Law” can incorporate many different areas of law such as privacy law, contract law and intellectual property law…all which were developed before the internet was even a thing.  You also have to think how the Internet is global and how laws and application of those laws can vary by jurisdiction.

Internet Law can include the following:

  • Laws relating to website design
  • Laws relating to online speech and censorship of the same
  • Laws relating to how trademarks are used online
  • Laws relating to what rights a copyright holder may have when their images or other content is placed and used online
  • Laws relating to Internet Service Providers and what liabilities they may have based upon data they process or store or what their users do on their platforms
  • Laws relating to resolving conflicts over domain names
  • Laws relating to advertisements on websites, through apps, and through email
  • Laws relating to how goods and services are sold online

As you can see just from the few examples listed above, a lot goes into “Internet Law” and many Internet Law attorneys will pick only a few of these areas to focus on because it can be a challenge just to keep up.  Indeed, unlike other areas of law, “Internet Law” is not static and is always evolving.

Do you think you have an Internet Law related question? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business and individual clients and strive to meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

 

 

 

Anette B.

Email Marketing | Non-Compliance with CAN-SPAM Can Be COSTLY!

So many businesses now rely on email marketing to help generate traffic and revenue. However, failure to comply with the rules set forth in the CAN-SPAM Act could be financially ruinous!

The Federal Trade Commission (“FTC”) explains that the CAN-SPAM Act “is a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations.”  Just how tough of penalties you ask?  Try penalties up to $40,654, for each separate email, found to be in violation!

Uneducated businesses owners, trying to save a buck by doing email marketing for themselves in lieu of a more traditional professional service, may very well unknowingly send out emails that are in violation of the rules set forth by the CAN-SPAM Act.  In fact, in spite of the connotation that might stem from its name, CAN-SPAM doesn’t just apply to email messages that are sent in bulk – you know, like what you would normally think of as “SPAM.”  The rules under the CAN-SPAM Act apply to ALL commercial email messages that are for the primary purpose of commercial advertisement or promotion of a commercial product or service.  Even emails that are to a former customer, maybe announcing a new product or service, has to comply with the CAN-SPAM Act rules….or else…potential OUTRAGEOUS penalties.  Let’s assume that you email 100 former customers; those emails were not compliant with CAN-SPAM, and assuming maximum penalties would be awarded against you, that would be $4,065,400!  Yes, you read that right.

THE MATH:  100 (non-complying emails to people) x $40,654 (the maximum penalties for violation) = $4,065,400.

Fortunately the rules are not all that difficult to comply with and the FTC’s website has provided a Compliance Guide for Business.  The basics include the following:

  1. Don’t use false or misleading header information.
  2. Don’t use deceptive subject lines.
  3. Identify the message as an advertisement.
  4. Tell recipients where you are located.
  5. Tell recipients how they can opt out from receiving future email from you.
  6. Honor opt-out requests right away.

One other key thing to remember is EVEN IF you rely on someone else to do mass email marketing for you, YOU ARE STILL RESPONSIBLE!  You cannot turn a blind-eye to your advertising communications and expect to go unscathed if those communications do not comply with the law.

It is always a good idea to get a formal legal opinion on these kinds of matters if in doubt. If you are in the state of Arizona, and are seeking assistance with ensuring that your marketing emails, are in compliance with the CAN-SPAM Act, be it ones you created yourself or if you want to double check what your marketing vendor is doing,  Beebe Law, PLLC can help!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.