In a recent case decided by the Appellate Division in New Jersey – Vercammen v. LinkedIn Corp. – the court affirmed the dismissal of a lawsuit filed by a New Jersey attorney who had his LinkedIn premium membership terminated because of his alleged multiple violations of the social media network’s policies, even after he had been warned that his posting practices violated LinkedIn’s policies. LinkedIn terminated the attorney’s account because he was posting more than 15 articles per day (which exceeded the number of article members were permitted to post) and because he was using the articles to advertise his business in violation of the site’s Publishing Platform Guidelines.
All of the attorney’s claims – for breach of contract, breach of warranty, injunctive relief, negligence, fraud and consumer fraud – were dismissed with prejudice at the trial level, for among other reasons, the attorney’s failure to comply with the forum selection clause in LinkedIn’s User Agreement, which required disputes to be litigated in California.
On appeal, the attorney argued that he “lacked reasonable notice” of the terms in the LinkedIn User Agreement, including the forum selection clause. The court, however rejected that argument. The court initially noted that forum selection clauses are “prima facie valid and enforceable in New Jersey” and found that a critical consideration in determining the enforceability of such clauses is whether the plaintiff was provided with fair notice of the forum selection clause.
Here, the court found that to complete his premium membership subscription, plaintiff was required to click a button which stated, “Start your free trial.” Immediately above that button was the following statement: “By placing this order you agree to our terms of service.” The words “terms of service” were a clickable hyperlink to the LinkedIn User Agreement which contained the forum selection clause. The Appellate Division held that “the clause was not hidden nor submerged,” so it rejected plaintiff’s claim that he had no notice of its terms. Thus, the court affirmed the trial court’s ultimate decision to dismiss the action, but remanded the matter so the trial judge could modify the order to reflect that the dismissal was without prejudice, which would allow plaintiff to pursue his claims against LinkedIn in California as per the forum selection clause in the User Agreement.
Parties to contracts are often admonished to “always read the fine print.” In the digital age, parties should not only read the fine print, but they should also click the hyperlinks which will take them to where the fine print can be found.
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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.
Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.
For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.