Almost Famous…on a Social Networking Site with a Forum Selection Clause

The ease of creating a MySpace profile (or Twitter) that impersonates a celebrity has to be nerve racking for actors, rock stars, and anyone else who is “famous.” 

 

 

Riggs v. Myspace, Inc., 2009 U.S. Dist. LEXIS 37109 (W.D. Pa. May 5, 2009) is the story of a Plaintiff who created a “Celebrity Guardian Angel” profile to protect celebrities from online impersonators. The Plaintiff’s “Celebrity Guardian Angel” profile would confirm whether a celebrity’s profile was legitimate as a means to reduce the number of celebrity impostures. 

MySpace deleted the Plaintiff’s account for violation of the MySpace account’s terms of use, after a celebrity imposture accused the Plaintiff of harassment and bullying.  Several months after deleting the Plaintiff’s profile, MySpace started their own website for celebrities, which the Plaintiff claimed was her concept. Riggs, 2-3. 

The Plaintiff sued MySpace in Pennsylvania for negligence, breach of implied contract, fraud and intentional infliction of emotional distress. Riggs, 2.

MySpace brought a motion to dismiss for improper venue or in the alternative, a motion to transfer to the United States District Court for the Central District of California, pursuant to MySpace’s terms of use agreement. Riggs, 2.

The Terms of Use provision was a click wrap agreement, which stated:

Disputes. If there is any dispute about or involving the MySpace Services, you agree that the dispute shall be governed by the laws of the State of California, USA, without regard to conflict of law provisions and you agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in the State of California, City of Los Angeles. Either MySpace.com or you may demand that any dispute between MySpace.com and you about or involving the MySpace Services must be settled by arbitration utilizing the dispute resolution procedures of the American  [*4] Arbitration Association (AAA) in Los Angeles, California, USA, provided that the foregoing shall not prevent MySpace.com from seeking injunctive relief in a court of competent jurisdiction. Riggs, 4.

The Plaintiff argued that MySpace breached the “Terms of Use” provision by failing to enter arbitration, thusly allowing the Plaintiff to sue MySpace in Pennsylvania, instead of California.  Riggs, 4.

The Court stated MySpace “breaching” the contract by terminating the Plaintiff’s profile was immaterial.  Additionally, arbitration was not a condition of performance and had no effect on the other stated remedies.  Riggs, 5.  Therefore, any breach of the arbitration clause did not invalidate the forum selection or choice of law provisions.  Riggs, 5-6.

In language that would make the Supreme Court in Carnival Cruise Lines, Inc. v. Shute 499 U.S. 585, (U.S.Wash.,1991.) proud, the Court effectively stated that the purpose of adhesion contracts with forum selection clauses is to simplify the question of personal jurisdiction for MySpace.   Riggs, 9. Moreover, there was no reason (or argument) that the forum selection clause establishing “exclusive personal jurisdiction” in Los Angeles, California, was in anyway unfair or unreasonable.  Riggs, 9-10.

On the bright side, at least the Plaintiff can at least meet real celebrities while in Los Angeles.

Is the Circus in Town? Justifying a Change of Venue from Online Publicity

United States v. McRae, 2009 U.S. Dist. LEXIS 32411 (W.D. Tenn. Apr. 15, 2009) is a 1983 action against a police office for violating a prisoner’s rights.  The incident was captured on video and had been broadcast on the news, with denouncements and outcry from politicians, public figures, the Plaintiffs in the civil action and anonymous blog posters.  McRae, 1-2. 

The Defendant sought a change of venue because of the pretrial publicity.  McRae, 1-2.  The Defendant’s evidence of prejudice included a hard copy exhibit of a blog of local events.  The blog contained anonymous comments concerning the case, which the Defendant claimed prejudiced his case.  McRae, 4.

The Government opposed a transfer of venue and argued jury voir dire was the appropriate way to identify any actual prejudice to the Defendant.  McRae, 4.

Courts can find a defendant has been prejudiced from pretrial publicity when “an inflammatory, circus-like atmosphere pervades both the courthouse and the surrounding community.” McRae, 5. 

In short, if the circus is not in town, the Court must evaluate actual prejudice against a defendant by questioning the jury pool during voir dire.

The test for a trial court to find prejudice from pretrial publicity is to review the media coverage and the prospective jurors’ statements at voir dire to decide “whether a community-wide sentiment exists against the defendant.”  McRae, 5-6, citations omitted.   

The Court held the pretrial publicity had NOT prejudiced the Defendant to warrant a transfer of venue.  While the case had a large amount of national and local press coverage, there was nothing to show a “trial atmosphere that [has] been utterly corrupted by press coverage.”  McRae, 8-9, citations omitted. 

Actual prejudice from online pretrial publicity might not be as obvious as a virtual circus in Second Life.  The analysis required to show pretrial prejudice from online coverage would probably be daunting.  A party might be required to produce search engine hits on a Defendant’s name or other case information, listserv topics, Twitter “Tweets,” comments from news websites and other online evidence to show prejudice. 

For now, the most effective way to handle any prejudice from online publicity is through questioning the jury pool to find any bias.  The Court will know a media circus when it sees one.  Until then, if you have a high profile case, be on the lookout for Casey Junior coming down the tracks.