2H 2020 Quick Links, Part 5 (Contracts, E-Commerce, Defamation, Censorship, & More)


* Kidstar v. Facebook, Inc.,  2020 WL 4382279 (D.N.J. July 31, 2020). The plaintiff sued Facebook because he lost access to photos in his account.

assuming, arguendo, that Plaintiff opened a Facebook account in 2004, the 2009 User Agreement became the governing document upon his registration in 2009 until 2017, when the 2017 User Agreement became the governing document upon his creation of a subsequent Facebook account… Plaintiff had reasonably conspicuous notice of Facebook’s contract terms, based on the layout of the page, and the color, size, and location of the text. Accordingly, the Court concludes that Plaintiff unambiguously manifested his assent to these terms, including the forum selection clause, by clicking “Sign Up” in 2009 and “Create Account” in 2017

* Hansen v. Ticketmaster, 3:20-cv-02685-EMC (N.D. Cal. Dec. 11, 2020):

• The sign-in page at issue was relatively uncluttered. Although there was a graphic with text, that was set to the side so that the sign-in box itself was prominently featured.

• In the sign-in box, the following text was right above the blue “Sign in” button: “By continuing past this page, you agree to the Terms of Use and understand that information will be used as described in our Privacy Policy.” The proximity of the text to the “Sign in” button makes the text conspicuous. Mr. Hansen criticizes the text for being smaller than other text and for being grey in color. But the text is not markedly smaller than the other text, and the grey is in sufficient contrast to the background which is white. Moreover, the phrase “Terms of Use” appears in blue font so that there is even more contrast….

he highlights that the actual number of people who clicked on “Terms of Use” is very small – less than 1 percent. But, under the circumstances, that fact does not weigh very heavily in supporting Mr. Hansen’s position that the text above with the hyperlink to the TOU was not conspicuous.

* Anderson v. Amazon.com, Inc.,  2020 WL 4586173 (M.D. Tenn. Aug. 10, 2020). Upholding eBay’s mandatory arbitration clause because the plaintiff did not follow the opt-out requirements specified in the clause.


* Woodards v. Google Corp., 2020 WL 4905573 (N.D. Tex. June 30, 2020)

Woodards did not allege any facts that would support a claim against Google under any of the three possible causes of action for product liability. His Complaint does not set forth any facts to show that Google’s product was defective, that the defect caused it to be unreasonably dangerous, that it reached Woodards in substantially the same form as when it left Google’s control, and that the defective product was a producing cause of injury to Woodards. Nor does the Complaint set forth facts to show that Google owed a legal duty to Woodards in connection with its Google Maps application, that it breached that duty, and that Woodards sustained injury as a proximate result of that breach. Finally, the Complaint is devoid of any references to express or implied warranties that Google allegedly breached that caused damage to Woodards. Accordingly, the Complaint fails to assert any claim against Google for strict liability in tort, negligence, or breach of warranty. Finally, although the Complaint states that Google should pay Woodards $1 trillion in punitive damages, it contains no facts describing actual damages that Google caused, and it provides no facts that describe any conduct by Google that would support an award of punitive damages.

* Thurston v. Fairfield Collectibles of Georgia, LLC (Cal. App. Ct. 2020): “many of Fairfield’s customers are California residents. And all of these — not just some — necessarily purchased through either Fairfield’s website or its catalog. On the other hand, unlike in Snowney, there is no evidence that Fairfield’s website “targeted” Californians (any more than residents of other states, or indeed other countries). The question, then, is whether this distinction makes a difference. As You Sow v. Crawford Laboratories, Inc. (1996) 50 Cal.App.4th 1859 indicates that it does not.”

* New CA B&P 22598:

For purposes of this chapter, the following definitions shall apply: (a) “Food delivery platform” means an online business that acts as an intermediary between consumers and multiple food facilities to submit food orders from a consumer to a participating food facility, and to arrange for the delivery of the order from the food facility to the consumer. (b) “Food facility” means a food facility, as defined in Section 113789 of the Health and Safety Code.22599. A food delivery platform shall not arrange for the delivery of an order from a food facility without first obtaining an agreement with the food facility expressly authorizing the food delivery platform to take orders and deliver meals prepared by the food facility.

* NBC News: Addicted to losing: How casino-like apps have drained people of millions


* Hawkins v. Knobbe, 2020 WL 7693111 (Tex. Ct. App. Dec. 28, 2020): “Hawkins does not argue that accusing him of making a false [512(f)] DMCA claim implied a crime; he contends that because the statute requires DMCA complaints to be under penalty of perjury, Knobbe has in effect accused him of perjury, which is a crime. But the implication Hawkins urges is simply too remote. There is no mention of perjury in the posts and no reasonable reader could imply that from the posts.”

* Stormy Daniels v. Donald J. Trump, 2020 WL 4384081 (9th Cir. July 31, 2020). Trump defeats Stormy Daniels’ twibel case.

* NYT: American Could Face Prison in Thailand After Posting Negative Reviews of a Resort


* Krapacs v. Bacchus, 2020 WL 4668046 (Fla. Dist. Ct. App. Aug. 12, 2020):

we consider whether the trial court’s order enjoining Krapacs from future posting of messages about Bacchus was an unconstitutional prior restraint on expression covered by the First Amendment. A regulation of speech that “references” Bacchus is necessarily a regulation of the subject matter of that speech. The injunction in this case fully regulates and puts limits on any expression that relates to a particular subject, i.e., Bacchus. As such, we find that the portion of the trial court’s order prohibiting Krapacs “from posting Nisha Bacchus, Nisha Elizabeth Bacchus or any part thereof, on any social media or internet websites [and Krapacs] shall take down all social media and internet posts that reference Nisha Bacchus, Nisha Elizabeth Bacchus, or any part thereof immediately” is overbroad. In line with First Amendment principles, this court emphasized that an injunction banning such posts about a person instead of directed at a person is a prior restraint

* Catlett v. Teel, No. 80059-1-I (Wash. Ct. App. Dec. 7, 2020). “Robert Teel appeals from the entry of an anti-harassment protection order that restrains his behavior. The protection order was based solely on Teel’s actions in causing public records to be published—a right that is protected under both the United States and Washington Constitutions. Accordingly, the protection order is invalid under chapter 10.14 RCW, which provides that an antiharassment protection order cannot be based on actions that qualify as constitutionally protected speech. In addition, the protection order imposes an unconstitutional content-based restriction and serves as an unconstitutional prior restraint on Teel’s speech.”

* NY Times: No ‘Negative’ News: How China Censored the Coronavirus

Social Media

* Goldstein v. Facebook, Inc., 2020 WL 4696457 (E.D. Tex. Aug. 12, 2020): Rejecting his claim that Facebook aided and abetted terrorism because he couldn’t show any harm from Facebook’s conduct.

* Crossfit, Inc. v. Fitness Trade sp, 2020 WL 6449155 (S.D. Cal. Nov. 2, 2020):

CrossFit alleges that the Fitness Trade Defendants expressly aimed their activities at California by using Facebook and Instagram, California-headquartered companies, to promulgate infringing content on Paleoethics Europe’s social media pages. The Court rejects CrossFit’s contention that the use of such services, without more, creates a jurisdictionally relevant contact with California. In today’s world, it has become nearly universal practice for businesses to operate Facebook, Instagram, and/or other social media accounts for marketing purposes. Like with third-party servers, basing personal jurisdiction on a nonresident defendant’s operation of a Facebook or Instagram page would expand the reach of California’s long-arm statute beyond the bounds permitted by the Due Process Clause. District courts in this circuit have repeatedly held that merely operating an account on a California-headquartered company’s platform is insufficient to establish purposeful direction.

* NY Times: Facebook will ban political ads indefinitely after polls close on Nov. 3, as alarm rises over the election.

* Yelp introduces new ‘business accused of racist behavior’ consumer alert

* BuzzFeed: Users On A Site For Kinky People Say The Racism Has Become Unsustainable

* Twitter: New labels for government and state-affiliated media accounts

* NY Times: How Pro-Trump Forces Work the Refs in Silicon Valley

* WaPo: Burnout, splinter factions and deleted posts: Unpaid online moderators struggle to manage divided communities


* Hubbard v. Google LLC, 2020 WL 7495084 (N.D. Cal. Dec. 21, 2020). COPPA cannot be the basis of a private right of action:

by the text of the preemption clause, state law claims predicted on COPPA violations are preempted because of the treatment inconsistent with COPPA’s remedial scheme involving the FTC and state attorneys general.

* Heeger v. Facebook, Inc., 2020 WL 7664459 (N.D. Cal. Dec. 24, 2020):

There is no legally protected privacy interest in IP addresses alone….Consequently, they cannot be injured from the collection of IP addresses, and so lack Article III standing for the privacy claims under California common law, the California constitution, and CIPA that are premised on that ostensible injury.

* United States v. Zarokian, 2020 WL 4201241 (D. Ariz. July 22, 2020): “Mr. Zarokian pleaded guilty to one count of conspiracy in violation of 18. U.S.C. § 371, a Class D felony offense. Mr. Zarokian conspired with the co-defendant to intentionally damage a protected computer in violation of 18 U.S.C. § 1030(a)(5)(A). The Court adopted the plea agreement and sentenced Mr. Zarokian. As part of his plea agreement, Mr. Zarokian agreed to pay full restitution to Xcentric in an amount not to exceed $200,000.”  The court set the restitution amount at $87k.

* WSJ: A California Law Was Supposed to Give Uber Drivers New Protections. Instead, Comedians Lost Work.

* NY Times: “Novelty Oreos, according to Mr. Parnell, play a much purer role: They help drive consumers back to milk’s alleged favorite, the 108-year-old paterfamilias, the plain old Oreo. In other words, the new flavors function as advertisements for the original.”

* Jareb A. Gleckel, Are Consumers Really Confused by Plant-Based Food Labels? An Empirical Study

(1) consumers are no more likely to think that plant-based products come from an animal if the product names incorporate words traditionally associated with animal products than if they do not. (2) Omitting words that are traditionally associated with animal products from the names of plant-based products actually increases consumer confusion about the taste and uses of these products, although it does not impact consumers’ understanding of the products’ nutritional attributes.

* Bloomberg: Oracle’s Hidden Hand Is Behind the Google Antitrust Lawsuits