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Anita Ramasastry

Facebook Can Legally Terminate Users -- as a Recent Lawsuit Explains -- But Cannot Violate the Covenant of Good Faith and Fair Dealing In Doing So


Tuesday, November 16, 2010

Many social-media sites, where users can post content and interact, have Terms of Service (ToS) that purport to allow the site to terminate a user for certain types of harmful or offensive conduct. But if a site actually does terminate a user, is that legal? The answer, in most cases, is yes.

Recently, a Facebook user took the social-networking site to court -- alleging that it had breached its contract with her by terminating her account. The reason for the termination, Facebook said, was that she had harassed other members.

The court sided with Facebook, concluding that the social-networking site had not breached its contract with the user by terminating her from the site.

The court did, however, note that termination cannot be arbitrary or capricious. In other words, there has to be a proper rationale; Facebook cannot simply kick someone off on a whim.

In this column, I will analyze the court's holding and discuss why its reasoning, which is based on standard contract law, was correct.

The Allegations in Young v. Facebook

The facts and allegations of the case are as follows: In February 2010, Karen Young opened a personal account on Facebook, which grew to include as many as a 4,300 "friends." Subsequently, Young created several Facebook pages focused on issues such as cancer; sent friend requests to strangers who she thought might be interested in cancer issues; and voiced her opposition to a page praying for President Obama's death.

After Young spoke out about the Obama Prayer for Death page, she says, she was subjected to "hatred, violence, discrimination, threats, pornography, . . .and personal attacks." She also alleges that she felt harassed when many other Facebook users poked fun at her, sometimes using offensive Photoshopped versions of her profile picture.

However, Facebook seems to have concluded that Young, too, was at fault. In June 2010, Facebook deactivated her account, alleging that she had violated the ToS by engaging in what Facebook described as harassing or threatening behavior toward other Facebook users -- including sending friend requests to people she did not know, frequently contacting strangers, and soliciting other Facebook users for dating or business purposes. After Young appealed, Facebook told her that her account would be reactivated, but warned her to comply with the ToS.

Subsequently, Young's account was deactivated a second time, for similar reasons. And this time, Facebook refused to reactivate Young's account -- even after she drove from her home in Maryland to Facebook's California offices to make an in person request for reactivation.

Young then sued pro se (acting as her own attorney) in California Superior Court, alleging that Facebook had violated her First and Fourteenth Amendment rights, and bringing claims under California state law for breach of contract, breach of the implied covenant of good faith and fair dealing (a promise that courts find is implicitly made in every contract), negligence, and fraud.

Facebook had the case moved to federal district court in Northern California and moved to dismiss the lawsuit. The federal district court granted the motion.

The Court's Rulings on Young's Claims

The court dismissed Young's constitutional claims for a very simple reason: Government entities are subject to constitutional limitations, but private companies like Facebook are not. Unless a private company acts "under color of law" -- that is, in a governmental capacity, or at the behest of the government -- it cannot violate the First or Fourteenth Amendments. (Young pointed to the fact that various federal agencies have Facebook pages to try to establish some kind of government/Facebook link, but the court noted that those pages had no connection to her use of Facebook or her subsequent termination.)

Young also brought contract claims against Facebook. These claims were based on her contention that Facebook had violated its own Statement of Rights and Responsibilities when it failed to affirmatively protect her from the harassment she alleges that she suffered in retaliation for her opposition to the Obama Prayer for Death page. However, the court found that the Statement of Rights and Responsibilities does not create affirmative duties on the part of Facebook, and pointed out that, to the contrary, the Statement expressly and specifically disclaims any responsibility for policing the network's safety.

More significantly, another of Young's contract claims raised the question whether Facebook had terminated Young's account in bad faith -- or whether it had a reasonable and legitimate reason for doing so. Every contract (under California law, and the laws of most other states) contains an implied duty of good faith and fair dealing, defined as an unwritten but implied "covenant by each party not to do anything, which will deprive the other parties . . . of the benefits of the contract." Young claimed that Facebook had violated this implied duty to her in two ways: (1) by failing to provide the safety services it advertised; and (2) by violating the "spirit" of its ToS by terminating her account.

The court made short work of the first argument, remarking, " The Statement of Rights and Responsibilities notes that, ‘We do our best to keep Facebook safe, but we cannot guarantee it.'" The court concluded that because Facebook did not assume the duty to keep users safe in the first place, it could not have acted in bad faith by breaching that duty.

With respect to Young's second argument, the court reasoned, "It is at least conceivable that arbitrary or bad faith termination of user accounts, or even termination of user accounts with no explanation at all, could implicate the implied covenant of good faith and fair dealing." To allow termination for no reason, the court concluded, would violate the very purpose of the contract, rendering users unable to rely on the services Facebook promised to provide.

In Young's case, however, the court noted that Facebook had not acted in bad faith. It suggested that one of Young's primary complaints was that, when her account was terminated, she received email notice, rather than a call from a human being -- but, it pointed out, email notice was the only kind of notice Facebook promised to provide: Its termination provision stated that when an account is terminated, Facebook "will notify you by email or at the next time you attempt to access your account."

Finally, Young alleged that Facebook acted negligently and fraudulently with respect to her termination. The court did not find evidence to support either claim, and dismissed those claims as well.

The Bottom Line: Facebook and Similar Social-Networking Sites Can Terminate Users, But There Are Limits on that Power

What are the lessons to be learned from Young's case? First, Facebook and other social-media sites reserve the right to kick us off if we behave improperly. And, in Facebook's case, improper behavior can include trying to "friend" too many strangers.

Second, there are limits to the ability of Facebook and other sites to terminate user accounts. Such sites need to have a stated, legitimate reason for user termination. If such sites act on a whim, or in an arbitrary fashion, they risk violating the implied contractual duty of good faith and fair dealing.

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column are solely those of Ramasastry in her personal capacity and do not necessarily represent the views of any of her employers, past or present.

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