Misrepresentation by JuicyCampus?
The AP reports:
New Jersey prosecutors have subpoenaed records of JuicyCampus.com, a Web site that publishes anonymous, often malicious gossip about college students.
Language on the site ranges from catty to hateful and offensive. One thread, for example, on the "most overrated Princeton student" quickly dissolves into name-calling, homophobia and anti-Semitism.
JuicyCampus may be violating the state's Consumer Fraud Act by suggesting that it doesn't allow offensive material but providing no enforcement of that rule -- and no way for users to report or dispute the material, New Jersey Attorney General Anne Milgram said Tuesday....
The attorney general has also subpoenaed the Web site's advertising agency, Adbrite, to determine how JuicyCampus represented its operation and what advertising keywords the site requested....
Can anyone tell me, please, just what JuicyCampus has been saying that is supposedly a misrepresentation?
I agree that speakers and service providers are bound by their contracts, including contracts not to say or host certain things. They may also in some situations be bound by explicit promises they make in their advertising. But it would obviously be dangerous to have them be liable for broadly "suggesting" certain things. Imagine a state Attorney General prosecuting the New York Times for "suggesting that it" is fair and accurate, and investigating whether they've defrauded consumers because of supposed bias and error. (No, seriously, that sort of prosecution would be bad.)
Likewise, imagine an attorney general going after us for "suggesting" with our comment policy that we'd delete offensive comments, but then not doing a good enough job of deleting them. Of course, we don't say we'll delete offensive comments (we try to discourage such comments, and we may delete them, but we never say we will), but who knows what someone might think we suggest? So can anyone report on what exactly JuicyCampus said that might have been false or misleading?
More on New Jersey Attorney General's Investigation of JuicyCampus.com:
New Jersey Star-Ledger columnist Paul Mulshine has more, including this:
The attorney general contends that the site is violating the consumer fraud act because it fails to "honor the terms and conditions that it informs the public it will adhere to."
I called consumer affairs spokesman Jeff Lamm and asked him to direct me to any terms and conditions on the site that are binding on the operator. If such terms or conditions existed, I reasoned, then JuicyCampus must have hired the dumbest lawyers on the planet.
It didn't. Although Lamm said he was told by the attorney general's legal staff that "there were representations on the site about people who visit the site being able to report objectionable or malicious content or content that violates one's right to privacy," he couldn't direct me to any such representations.
In fact, the site's FAQ (frequently asked questions) section goes out of its way to tell complainers to buzz off. The answer to the question "What if I see a comment that isn't true?" amounts to five paragraphs of the old saying "Sticks and stones may break my bones, but names will never hurt me."
Then there's this:
"Q. I'm offended!
"A: Sorry. Also, that's not a question ..."
David Wald, Milgram's spokesman, said the site is fraudulent because "there's no avenue to remove postings." But that would be fraudulent only if the site's operators had promised to remove postings. They didn't. And of course there are tens of thousands of other websites out there that offer no avenue to remove postings. Are they all subject to $10,000 fines under New Jersey consumer law?
The American Civil Liberties Union doesn't think so. "I can't fathom how the AG could consider this a target for a consumer fraud claim," said Deborah Jacobs of the New Jersey chapter....
JuicyCampus Lawyer Responds About the New Jersey Attorney General's Investigation:
For background, see here. Here's a response from a friend of mine, an experienced lawyer whose judgment I trust:
As it happens, I'm the lawyer who drafted Juicy Campus's terms and conditions, and who is representing Juicy Campus in connection with the New Jersey subpoena (along with local counsel in New Jersey). I was in trial the last week of March (on an unrelated matter) or I would have weighed in sooner.
Juicy Campus's Terms and Conditions simply do not say that Juicy Campus will delete offensive posts. To the contrary, the Terms and Conditions expressly provide:
6. No Pre-Screening or Regular Screening of Content.
You acknowledge that JuicyCampus does not pre-screen Content, but agree that JuicyCampus shall have the right (but not the obligation) to access, re-arrange, modify and remove or restrict access to any Content on the Site in its sole discretion and without notice or compensation. Without limiting the foregoing, JuicyCampus shall have the right to access and remove or restrict access to any Content that violates this Agreement or that JuicyCampus believes is otherwise objectionable, in its sole discretion.
The Attorney General's office is basing its investigation on the theory that because Juicy Campus requires its users to agree that they will not post anything defamatory, Juicy Campus is therefore obligated to delete posts that are alleged to be defamatory by third parties. In particular, the AG seems focused on paragraph 7 of the Terms and Conditions, which provides:
7. User Conduct.
No one could reasonably interpret such language to impose on Juicy Campus any obligation to delete posts.
You agree to not use the Site to:
(a) violate or solicit the violation of any applicable local, state, national or international law;
(b) infringe the rights of any third party, including but not limited to intellectual property rights and privacy or publicity rights;
(c) upload, post, email or otherwise transmit any Content that:
(1) is unlawful, threatening, abusive, tortious, defamatory, obscene, libelous, or invasive of another's privacy;
... If you use the Site to commit any of the above offenses, JuicyCampus may, at its sole discretion ... remove any Content you posted to the Site.
Even were there some representation that Juicy Campus would delete posts from the Site (which there emphatically is not), the AG's investigation for violation of New Jersey's consumer fraud statute would be baseless. The New Jersey Consumer Fraud Act prohibits, inter alia, "any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation ... in connection with the sale or advertisement of any merchandise ..." (emphasis added). Juicy Campus does not charge users to post on site or read the site, and does not sell any merchandise on the site. Juicy Campus does, however, serve third-party advertising. It seems self-evident that one who clicks on a banner ad does not do so in reliance on any representation in the Terms and Conditions, but according to Assistant Attorney General James Savage, the fact that JuicyCampus.com sells advertising to third parties is enough to support a finding of fraud if users (even those who never clicked on any advertisement) were misled by its Terms and Conditions into thinking that it would delete offensive posts.
If this is the law in New Jersey, I'm moving there tomorrow to hang out my shingle. It seems to allow one who is neither a party to a contract nor an intended beneficiary of that contract to allege that one has been defrauded by the manner of the contracting parties' performance, without having sustained any damage as a result. I would start by suing all the lenders who have the right to foreclose on late-paying borrowers but are refraining from doing so, on the theory that their failure to enforce the borrowers' payment obligation defrauds me. I would then sue every bank in New Jersey that had ever waived an overdraft charge, since I believe their agreements with their customers allow them to collect such charges. The absurdity of the Attorney General's position is underscored by the sheer inanity of some of the interrogatories in the subpoena (my favorite: "What does the Company mean by the term 'beta' as it is currently used on the JuicyCampus.com website").
Paul Mulshine of NJ.com got it right: it's grandstanding. Richard Blumenthal, the Attorney General of Connecticut, has now chimed in with a letter asking for information similar to that sought by the New Jersey subpoena. I'll keep you posted as things develop.