Web Host Can Terminate Customer for Abusive Call to Customer Support–Mehmet v. Add2Net

By Eric Goldman

[This is a relatively minor pro se case, which is why I've let it sit this long, but it has a couple of interesting facets that make the case worth blogging even at this late date.]

Mehmet v. Add2Net, Inc., 2009 WL 3199876 (N.Y.A.D. Oct. 8, 2009). The opinion (starting on page 39).

This case is a nice example of online providers’ broad discretion to terminate their users. The dispute involves a web host and its customer. The customer stopped payment, so the host (apparently legitimately) turned off his site. In response, the customer left a nasty voicemail containing an “obscene word.” The provider then wrote back to say the relationship was finis. In support of this, the provider cited a user agreement provision banning customers from “abusing” any of the web host’s employees. The host took the position that the customer’s voicemail breached this clause, justifying the final termination.

The user agreement’s exact clause says that customers agree “not to abuse whether verbally or physically or whether in person, via email or telephone or otherwise … any employee or contractor.” Have you ever seen a clause like this? I haven’t, nor would I choose to include such an amorphous clause in any contract I drafted. I do appreciate the provision’s spirit, especially with all of the mania about anti-cyberbullying and providing safe employment environments, but I have a hard time imagining a covenant that would be enforced more inconsistently or arbitrarily. As a result, a clause like this is virtually tantamount to saying that the vendor can turn off customers whenever it wants.

So, should online service providers add these provisions to their online user agreements? In the wake of the Lori Drew prosecutions where the courts and prosecutors have been overinterpreting user agreements, I have argued against laundry lists of negative covenants in user agreements, but here the clause proved useful. Then again, the customer’s initial failure to pay might have given the web host all of the recourse it actually needed.

For virtual world enthusiasts, I would connect the dots between this case and the recent Estavillo v. Sony case, which said that virtual worlds are not company towns. In this case, relying on the ridiculously overbroad negative covenant, the web host wiped out all of the customer’s data files in the final termination. Thus, this ruling would seem to support that a virtual world provider similarly could include overbroad negative covenants in its user agreement, arbitrarily enforce a breach against a customer, wipe out the customer’s online presence (and all of the digital assets stored in the virtual world), and face no recourse for the loss of those digital assets. I trust this reinforces the uneasiness of virtual world enthusiasts.

More perspectives on the lawsuit from Mehmet himself. It appears he is a serial plaintiff. That may have been material to the court’s consideration.

HT: Evan Brown