Court upholds eBay forum selection clause

October 26, 2009 | by Evan Brown | 3 Comments 

Tricome v. Ebay, Inc., 2009 WL 3365873 (E.D. Pa. October 19, 2009)

Everyone who signs up to use eBay has to assent to the terms of eBay’s User Agreement. Among other things, the User Agreement contains a forum selection clause that states all disputes between the user and eBay must be brought to court in Santa Clara County, California.

After eBay terminated plaintiff Tricome’s account, Tricome sued eBay in federal court in Pennsylvania. eBay moved to dismiss or to at least transfer the case, arguing that the forum selection clause required it. The court agreed and transferred the case to the U.S. District Court for the Northern District of California.

Plaintiff had argued that the court should not enforce the forum selection clause because it was procedurally and perhaps substantively unconscionable. The court found the agreement not to be procedurally unconscionable because Plaintiff did not have to enter into the agreement in the first place — he only did it to increase his online business. Furthermore, eBay did not employ any high pressure tactics to get Plaintiff to accept the User Agreement. Moreover, eBay had a legitimate interest in not being forced to litigate disputes all around the country.

The court likewise found the User Agreement was not substantively unconscionable either. It would not “shock the conscience” for a person to hear that eBay — an international company — would undertake efforts to focus litigation it is involved with into a single jurisdiction. Furthermore, having the forum selection clause would conserve judicial and litigant resources, in that parties and the courts would know in advance where the appropriate place for disputes concerning eBay would be heard. Finally (and rehashing an earlier point regarding procedural unconscionability), Plaintiff had a meaningful choice — he could have decided not to do business on eBay in the first place.

Map photo courtesy Flickr user sidewalk flying under this Creative Commons license.

Web photos inadmissible as evidence in case against deer hunter

October 16, 2009 | by Evan Brown | 2 Comments 

State v. Ness, — N.W.2d —-, 2009 WL 3296676 (N.D. Oct. 15, 2009)

Another day, another state supreme court decision about whether web-found evidence is admissible. Yesterday our discussion was about a MySpace posting in a murder trial. (The evidence in that case was admissible.) Today it’s about pictures from the Internet in a case against a hunter accused of failing to tag the deer he had shot. (The evidence in this case was inadmissible.)

Defendant Ness was charged with violating a proclamation of the governor of North Dakota (which has the force of law) requiring hunters to “immediately” place a state-issued tag on all deer killed. At trial, his attorney cross examined the game warden who issued the citation to Ness while Ness was cutting the deer up in his front yard. In connection with this cross examination, Ness’s lawyer tried to introduce photos from the web of other hunters, to shed light on what the word “immediately” meant.

The trial court excluded the photos of other hunters. Ness was found guilty and sought review with the North Dakota Supreme Court. On appeal, the court agreed that the photos were properly excluded.

Ness argued that keeping the photos away from the jury during the game warden’s cross examination violated his constitutional right to confront his accuser. The Supreme Court rejected that argument, however, finding that the pictures of other hunters with other animals at other times were irrelevant to the present matter and would not help the jury determine whether the law was broken in this case.

Deer photo courtesy Flickr user law_keven under this Creative Commons license.

MySpace posting was not improper character evidence at murder trial

October 15, 2009 | by Evan Brown | 3 Comments 

Clark v. State, No. 43S00-0810-CR-575 (Ind. October 15, 2009). [Download the opinion]

Defendant Clark killed his girlfriend’s two-year-old daughter. At his murder trial, the prosecution introduced the following post Clark had made to his MySpace page:

Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I’m glad to say I have helped you people in my past who have done something and achieved on the other hand, I’m sad to see so many people who have nowhere. to those people I say, if I can do it and get away. Bullshit. And with all my obstacles, why the fuck can’t you.

Clark was convicted of murder and sentenced to life in prison. He sought review with the Indiana Supreme Court. On appeal, the court affirmed the conviction.

One of the arguments Clark raised on appeal was that the trial court committed error when it allowed the jury to consider the MySpace posting. He claimed that it was improper character evidence under Indiana Rule of Evidence 404(b) which provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The Supreme Court held that Rule 404(b) did not apply because “[i]t was Clark’s words and not his deeds that were at issue.” The posting was “solely evidence of [Clark's] own statements, not of prior criminal acts.”

Moreover, Clark had made an issue of his character when he testified in his own defense. One theme of his testimony was that he had acted recklessly, and that had he intended to kill the victim he would have done more to conceal the crime. The court held that the bravado exhibited in the MySpace posting (in conjunction with a statement Clark had made to a detective upon his arrest, namely, “I will fucking kick your ass. I will send the Hell’s Angels to kill you. Fuck it. It’s only a C felony. I can beat this.”) was probative in that it countered his argument of “mere” recklessness.

Web host did not breach contract by terminating rude customer

October 11, 2009 | by Evan Brown | 7 Comments 

Mehmet v. Add2net, Inc., — N.Y.S.2d —-, 2009 WL 3199876 (N.Y.A.D. 1 Dept. October 8, 2009)

Plaintiff website operator didn’t pay his monthly hosting fees on time. He called the hosting company and said he’d be sending a check, but in the meantime the web host exercised its right under the hosting agreement to suspend Plaintiff’s account for nonpayment. Plaintiff called and left a nasty voicemail, using an obscene word to threaten to sue the hosting company if his website was not reactivated.

In response to this angry voice mail, the web host terminated Plaintiff’s account. He sued for breach of contract. The web host moved to dismiss at the trial court level and the court granted the motion. Plaintiff sought review. On appeal, the court affirmed the dismissal.

Of particular importance was a provision in the hosting agreement that incorporated by reference an Acceptable Use Policy (AUP), and provided that any breach of that policy would be grounds for suspension or termination of plaintiff’s account. Under the AUP, plaintiff agreed “not to abuse whether verbally or physically or whether in person, via email or telephone or otherwise … any employee or contractor of [defendant].”

The nonpayment coupled with this violation of the web hosting acceptable use policy undercut Plaintiff’s breach of contract claim.

Group sex photos case heads to trial

October 7, 2009 | by Evan Brown | 4 Comments 

Peterson v. Moldofsky, No. 07-2603, 2009 WL 3126229 (D.Kan. September 29, 2009)

Defendant took pictures of his ex-girlfriend “engaged in various sex acts with two other people.” Later he emailed some of the photos to his ex-girlfriend’s mother, ex-husband, ex-in laws, boss and co-workers.

The ex-girlfriend sued for intentional infliction of emotional distress and invasion of privacy. Defendant moved for summary judgment. The court denied the motion in large part.

Infliction of emotional distress

Defendant argued that the court should toss the intentional infliction of emotional distress claim because Plaintiff ex-girlfriend failed to show that Defendant’s conduct was sufficiently extreme and outrageous, and that the alleged distress exceeded what a reasonable person would experience in the circumstances.

The court rejected Defendant’s arguments. It found that an average citizen would think emailing photos of a person engaged in a manage a trois to one of the participants’ mother, among others, was outrageous. Moreover, Plaintiff’s distress was shown to be severe, as she had to get counseling. It sounds as if the court would have found it severe enough even without the counseling — Defendant’s conduct was “so shocking and outrageous as to give rise to an inference of severe emotional distress.”

Invasion of privacy

Plaintiff claimed two forms of invasion of privacy — intrusion upon seclusion and publication of private facts. The court held she had presented enough facts for the latter but not the former.

The court granted Defendant’s motion for summary judgment as to intrusion upon seclusion because no intrusion occurred. Plaintiff knew Defendant was there taking pictures of the activities. The court rejected Plaintiff’s argument that publication of the no doubt intimate photos constituted intrusion. It held that the disclosure of properly obtained information could not give rise to the claim.

But as to the argument that emailing the photos unlawfully publicized private facts, the court sided with Plaintiff. Defendant had argued that emailing the photos to only a half dozen or so people did not amount to “publication,” which is one of the elements of the tort. He pointed to Comment “a” of the Restatement (Second) of Torts ยง652D which says that “it is not an invasion of the right of privacy to communicate a fact . . . to a single person, or even to a small group of people.”

In rejecting this argument, the court engaged in what some might characterize as “Internet exceptionalism,” — applying the law in response to a perceived substantial difference between online and offline communication. The court observed that “the Internet enables its users to ‘quickly and inexpensively’ surmount the barriers to generating publicity that were inherent in the traditional forms of communication.” Finding this distinction to be significant, the court held that distribution of the photos even to a small group of people through the private means of electronic mail could be considered a “publication” for purposes of the tort of invasion of privacy.

Threesome photo courtesy Flickr user curgoth under this Creative Commons license.