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doubleyouteeeff

false advertising

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if a website has terms of service that say that you can't flame and troll the forum, does that create an advertisement that members can come on there and discuss whatever the topic of choice is without being insulted?

and, furthermore, does the failure to enforce those terms of service constitute false advertising?

For example, Youtube is infamous for not enforcing its civility rules. People flame, troll, and insult to their hearts desire, and get away with it, constantly. You can block people from your channel, but that doesn't work when you're on someone else's channel. Also, channel owners can use the block as a way to harass other users - which is, in and of itself, against the rules.

Would Youtube be committing false advertising, because they falsely advertised their policy of civility?

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The terms of service set out the rights of the parties, and gives the web site owner the right to take action against those who violate the rules. However, the web site owner need not enforce its rights—that is up to its discretion. It is not "false advertising" because, among other things, nothing on the site promises that the organization will enforce the rules.

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but, at the same time, doesn't it IMPLY that certain conduct would not happen BECAUSE it would violate the rules?

by that logic, wouldn't that mean that wal mart could say "the item itself isn't 40 dollars; your paying for a 40 dollar raffel ticket, and if you win the raffel, you get the item."

no, they would have to explicitly state that, rather than simply saying "we didn't say that paying us the 40 dollars would guarantee you the item, outright."

if the reasonable person would expect x to mean y, the, wouldnt x mean y?

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doubleyouteeeff said...

but, at the same time, doesn't it IMPLY that certain conduct would not

happen BECAUSE it would violate the rules?

No, logically does not. It says that it is violation of the terms of service for which the company may take action. It does not guarantee that users of the site will not violate the rules nor is it a guarantee the site will act against those who violate the rules. It simply gives the company the right to act to enforce the rules; because it is a right of the owner, it has the discretion whether to exercise that right. The TOS makes no guarantees to the users about enforcement of the policy nor gives them any rights if the rules are enforced.

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Of course not. Terms of service are not "advertising" in any sense of the word. Nor, under the circumstances, would the terms of service mentioned create a contractual duty for the web site operator to protect participants against flaming, trolling, insults, etc. You are basically a guest on someone else's property, and the owner of the property can choose to enforce or not enforce its rules in pretty much whatever manner it deems appropriate.

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doubleyouteeeff said...

but, at the same time, doesn't it IMPLY that certain conduct would not happen BECAUSE it would violate the rules?

It doesn't imply that the prohibited conduct won't happen any more than a law against murder implies that no one will ever murder anyone else. Just because there's a law doesn't mean people won't sometimes break the law. While it might create an implication that the web site operator will take action against those who violate the rules, that such an implication exists does not mean that the operator has a legal duty to do so.

doubleyouteeeff said...

by that logic, wouldn't that mean that wal mart could say "the item itself isn't 40 dollars; your paying for a 40 dollar raffel ticket, and if you win the raffel, you get the item."

Sorry, but this doesn't make a bit of sense to me. The two scenarios have nothing to do with each other.

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"or, under the circumstances, would the terms of service mentioned create

a contractual duty"

ahem,

offer (to give the services of the site)

acceptance (joining the site)

consideration (in exchange for obeying these rules, you agree to have these rules obeyed to you)

and

intent to be legally bound (you dont have to say "you hereby agree to be legally bound" in order to be legally bound. if that were the case, a hamburger purchase wouldnt be a contract because the parties didnt expressly state "we agree to be legally bound" instead, the courts would look to the actions of the parties. if the terms of service weren't contracts, why were they worded in much the same way as contracts are? why are they using all the legal jargon if they didn't intend to be LEGALLY bound)

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I can hardly believe this is so difficult to comprehend. The TOS impose obligations on members. They do not impose obligations on the web site operator. Where the site is free, there's no consideration flowing from the site member to the site. The agreement to be bound by the TOS is not consideration. Rather, it's a condition to the operator allowing the member to have access to the benefits of the site (e.g., "I'll let you bring your annoying girlfriend over as long as she promises not to act like the total b***h that she is.").

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"I'll let you bring your annoying girlfriend over as long as she

promises not to act like the total b***h that she is.")

That ALSO has consideration!

One party agrees to temporarily regulate his or her behavior.

The other agrees to grant access to his property to the first party.

It's a mutual thing!

I don't see why THAT'S so hard to comprehend!

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Even if there was a contract, the contract does NOT promise the member that the rules will be enforced. The TOS is written to give a right to the site operator to enforce the rules; simply having a right to enforce the rules does not logically mean the site operator MUST enforce the rules. Contractual rights are enforceable at the OPTION of the party holding the right. For example, you enter into a contract pay Paul $40/month for Paul to mow your lawn. Paul has the right to enforce that contract and collect his $40 so long as he mows the lawn. But there is no OBLIGATION on Paul to enforce his right to collect the $40. He could waive it or simply not act to enforce it. It's up to him. Same thing with the TOS here—there is no obligation on the site owner to enforce the rules. It simply has the RIGHT to do. For their to be an obligation to enforce that the members could act upon, the contract would need to specify that, e.g. "site owner agrees it will use its best efforts to enforce the rules in this agreement and remove posts that violate those rules." But it doesn't say anything like that, does it?

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Even if there was a contract, the contract does NOT promise the member

that the rules will be enforced.

It does, however, imply them.

However, how do you draw the line between who has the right, and who has the corresponding, negative right?

He might have the right to enforce the terms of service, but I also have the right to have the terms of service enforced when the lack of an enforcement would be detrimental to me.

Either that, or give me the right to enforce the rules, myself.

But, not neither one. Pick one.

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doubleyouteeeff said...

It does, however, imply them.

I disagree. You are making an unwarranted logical leap. Just because the TOS says that members agree to adhere to certain rules and that the site has the right to remove posts, kick members, etc., does not imply that members have a right under the agreement to expect that the site will enforce those rules nor does it give the members a right to enforce the rules themselves. It is quite possible, and indeed quite common, that web sites have the right in their sole discretion to decide what appears on their site. As I said, the contract must specify that site agrees enforce the rules and thus give up its discretion whether to enforce them. Indeed, YouTube goes a step further and specifically disclaims any liability for that in its TOS: "YOU SPECIFICALLY ACKNOWLEDGE THAT YOUTUBE SHALL NOT BE LIABLE FOR

CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD

PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS

ENTIRELY WITH YOU."

You are barking up the wrong tree with this one.

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Indeed, YouTube goes a step further and specifically disclaims any

liability for that in its TOS: "YOU SPECIFICALLY ACKNOWLEDGE THAT

YOUTUBE SHALL NOT BE LIABLE FOR

CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD

PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS

ENTIRELY WITH YOU."

Injury waivers aren't enforceable if the action that caused the injury was intentional.

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doubleyouteeeff said...

Injury waivers aren't enforceable if the action that caused the injury

was intentional.

So what? That still doesn't help you with the issue against the site that you raised at the start of this post. Sure, some third party posts something on the site that causes you harm, you MIGHT have a claim against the third party. The site's waiver doesn't cover the third party. But it does say that the site isn't responsible to you for the stuff that third parties put up there.

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But it does say that the site isn't responsible to you for the

stuff that third parties put up there.

Translated, I hereby WAIVE any cause of action if I am injured as a result of their act or omission.

It's a waiver. If it looks like a duck, walks like a duck, and quacks like a duck, then it's a duck.

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doubleyouteeeff said...

Translated, I hereby WAIVE any cause of action if I am injured as a

result of their act or omission.

No, at least not the part of the TOS I quoted. Again, you are attempting to make illogical leaps. The part I quoted said that the site is not liable for the harm done to you by third parties using the site. That is not the same as saying that you waive harm done by the site itself.

That said, there are other parts of the TOS where the site disclaims all kinds of other liability for acts of the site itself to the fullest extent that the law allows.

If CA law states that intentional torts cannot be waived, that of course would not be covered by the disclaimer. But I think you'd be hard pressed to convert a failure to remove material posted by third parties into some kind intentional tort by the site. And, as we've already covered, they don't have a contractual obligation to remove it, so contract law doesn't give you an avenue to pursue here.

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"The part I quoted said that the site is not liable for the harm done to

you by third parties using the site."

But, when they don't take it down, then they become an accomplice, do they not?

"That said, there are other parts of the TOS where the site disclaims all

kinds of other liability for acts of the site itself to the fullest

extent that the law allows."

Yes, but that doesn't count INTENTIONAL acts and omissions, such as the INTENTIONAL refusal to enforce the rules.

"But I think you'd be hard pressed to convert a failure to remove

material posted by third parties into some kind intentional tort by the

site."

How about, if I actually TELL them what's going on, and they blatantly ignore it.

"And, as we've already covered, they don't have a contractual obligation

to remove it, so contract law doesn't give you an avenue to pursue here."

No, you've stated it, but you haven't actually explained your logic.

It has all the elements of a contract, especially if we AGREE TO BE BOUND by those terms of service!

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doubleyouteeeff said...

But, when they don't take

it down, then they become an accomplice, do they not?

No. If a bystander watching an armed robbery fails to intervene, does that make the bystander an accomplice? Just because you are in a position to intervene in something and do not does not make you an accomplice.

doubleyouteeeff said...

Yes, but that

doesn't count INTENTIONAL acts and omissions, such as the INTENTIONAL

refusal to enforce the rules.

No. Sure, they decide what to take down. But there is nothing in the agreement that compels them to take down offending posts. This is the key thing you do not want to accept. The contract must say that the site has the obligation to enforce the rules—your idea that a right of the site owner is transformed into an obligation by implication is not logical and has no basis in contract law. There must be an affirmative obligation on the site owner to enforce the rules before it might give rise to a member to have any legal claim for damages.

doubleyouteeeff said...

How about, if I actually TELL them what's going on, and

they blatantly ignore it.

But they have no legal duty to you to remove it in the first place. Without a

legal duty, there can be no tort. And, since the contract doesn't provide an obligation to remove the posts (see above), there is no breach of contract claim either.

doubleyouteeeff said...

No, you've stated it, but you haven't actually explained

your logic.

It has all the elements of a contract....

Even if it has the elements of a contract, there is no term in that contract that creates an obligation on the site to remove posts that violate the rules. All the TOS do is give the site the right to remove them. That's it. Members cannot rely on that to make out a claim for a breach of contract. They'd need to show that the contract imposes an affirmative obligation on the site to enforce the rules. There is no such provision in the contract. Indeed, in my state I'd not be surprised if a court hit you with sanctions for filing a frivolous claim for making the argument you've advanced here.

So, before you try it, I suggest you get advice from a CA attorney who litigates contract cases to make sure that at the very least you won't end up costing yourself money by pursuing it.

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"No.

If a bystander watching an armed robbery fails to intervene, does

that make the bystander an accomplice?"

That's a completely different scenario, genius. If an armed robbery is in place, the robber is quite capable of fighting back. Even clerks are advised to simply give into the robber's demands.

If a websites takes down content, what's the author of that content gonna do? Honestly!

Also, depending on the state, if they are aware that something is happening, have the authority to put a stop to it, and don't, then it's legally considered the same as if they actively agreed to it, yes.

For example, if you walk into a store, and security cameras are in plain view, and you don't leave the store immediately upon seeing the cameras, then you're consenting to being filmed.

If someone is trespassing, it is presumed that they have your consent to trespass until the exact moment that you tell them to leave. Only if you tell them to leave, and they disregard that order, are they actually trespassing.

So, yeah, I DO consider being in a position where you are capable of putting a stop to something, and choose not to, as being an accomplice.

"Just because you are in a position to intervene in something and do not

does not make you an accomplice."

You are when the average person would EXPECT you to intervene.

Also, as I have said before, armed robbery is NOT a situation where a bystander is in a position to intervene.

"The contract must say that the site has the obligation to enforce the

rules"

And where, exactly, did you get this immutable fact?

Where does the law state that an obligation cannot be implied - that it must be explicitly stated?

"your idea that a right of the site owner is transformed into an

obligation by implication is not logical and has no basis in contract

law."

So, there is no such thing as an implied-in-act contract?

"There must be an affirmative obligation on the site owner to enforce the

rules before it might give rise to a member to have any legal claim for

damages."

Link please.

"But they have no legal duty to you to remove it in the first place."

Citation?

Honestly, if that's where the misunderstanding lies, then your claim contradicts EVERYTHING I have EVER known about contracts - that they don't have to actually be fleshed out in writing, with clear obligations and rights that are explicitly stated as obligations and rights.

Ever since I was a small boy, I was raised to understand that contracts can be implied in the actions of the parties, even before I was smart enough to put it in the words I am right now, I knew the CONCEPT of an implied contract.

What you're suggesting contradicts an entire lifetime of learning what a contract is.

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doubleyouteeeff said...

That's a completely

different scenario, genius. If an armed robbery is in place, the robber

is quite capable of fighting back. Even clerks are advised to simply

give into the robber's demands.

No, not really. Except in limited circumstances (e.g. certain requirements for medical and emergency personnel, etc.) one has no legal obligation to intervene to stop a wrong committed by another. Can you point to legal authority that states a general proposition to the contrary?

doubleyouteeeff said...

Also,

depending on the state, if they are aware that something is happening,

have the authority to put a stop to it, and don't, then it's legally

considered the same as if they actively agreed to it, yes.

For

example, if you walk into a store, and security cameras are in plain

view, and you don't leave the store immediately upon seeing the cameras,

then you're consenting to being filmed.

If someone is

trespassing, it is presumed that they have your consent to trespass

until the exact moment that you tell them to leave. Only if you tell

them to leave, and they disregard that order, are they actually

trespassing.

So, yeah, I DO consider being in a position where

you are capable of putting a stop to something, and choose not to, as

being an accomplice.

LOL, but none of those are situations in which someone is intervening to assist someone else, are they? Sure, if a wrong is done to you and you don't do anything to stop it when you could, you may be held to have consented. But that's not what you've been talking about—you want the web site to intervene to remove offending posts of third parties. So maybe YOU consider being in a position to intervene creates a general obligation to act, but thankfully the law does not.

doubleyouteeeff said...

"The contract must say that the site has

the obligation to enforce the

rules"

And where, exactly,

did you get this immutable fact?

Basic contract law, genius. If the contract doesn't impose the obligation, then the site isn't liable for breach of contract for not doing it.

doubleyouteeeff said...

So, there is no such

thing as an implied-in-act contract?

An implied contract will only occur in circumstances where there is no express contract. But here, you are arguing that the TOS is a contract. If it is, it is an express contract, and thus a court will look only to the terms stated in that document to determine the rights and obligations of the parties. Your problem here is that the TOS cannot be reasonably be read to impose the obligation you want to say that it imposes. You are trying mightily to say otherwise, but I don't see any court agreeing with you given how clearly it is written. At least not any court outside CA. CA has taken a more liberal view of interpreting contracts, but I doubt that even in CA that a court would bite on the argument you wish to make.

doubleyouteeeff said...

"Citation?"

I'm not your lawyer, and won't do the legal research in CA law for you. As I said before, why don't you pay a CA attorney for advice to find out whether you've got a leg stand on? Or go ahead and try litigating it yourself, and hope you at least avoid sanctions. Either way you'll find out if you're right. You need not believe what I tell you, and frankly I don't care. I'm done with this topic—there is nothing more useful for me to say at this point.

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Can you point to legal authority that states a general proposition to

the contrary?

Well, I CAN mention documentaries (of REAL events) where one guy was killed, at the killer's friend just stood there and watched, and the friend was charged with being at the scene of a crime, and not taking reasonable steps to prevent it.

Basic contract law, genius. If the contract doesn't impose the

obligation, then the site isn't liable for breach of contract for not

doing it.

The obligation is in the IMPLIED contract!

An implied contract will only occur in circumstances where there is no express

contract.

Show me.

I'm not your lawyer, and won't do the legal

research in CA law for you. As I said before, why don't you pay a CA

attorney for advice to find out whether you've got a leg stand on? Or go

ahead and try litigating it yourself, and hope you at least avoid

sanctions. Either way you'll find out if you're right. You need not

believe what I tell you, and frankly I don't care. I'm done with this

topic—there is nothing more useful for me to say at this point.

Translated: I CAN'T prove it.

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doubleyouteeeff said...

That ALSO has consideration! One party agrees to temporarily regulate his or her behavior. The other agrees to grant access to his property to the first party. It's a mutual thing! I don't see why THAT'S so hard to comprehend!

Here's the difference: John tells Bob that Bob may come over to John's house as long as Bob's girlfriend, Sally, doesn't act like an annoying b***h. That bestows on Bob the present right of access to John's house, but also tells Bob that this right will be revoked if Sally acts like an annoying b***h. But it does not mean that John cannot revoke the right of access for other reasons. Similarly, let's say that John tells eight of his other friends similar things. Doing so does not mean that one of the other friends has a contractual right to require John to give Bob and Sally the boot if Sally acts like an annoying b***h (ignoring for the moment the subjectivity of that term).

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Tax_Counsel said...

If CA law states that intentional torts cannot be waived

Since the issue here is not one of tort law, but rather, of contract law -- i.e., the poster is arguing that the web site is in breach of its purported contractual duty to enforce its TOS against another member -- this is a completely moot point. However, CA law says no such thing with respect to intentional torts.

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I'm a little confused as to why you posted here in the first place since you are unwilling to accept any response other than a response that agrees with your preconceived notion of how the law works here. Certainly, further back and forth on this issue would be pointless since you're obviously unwilling to accept accurate expositions on the law, and TC and I obviously aren't going to back off from what we know to be correct. If you want to sue the owner of the web site in question, go right ahead. Just don't be surprised when the suit gets tossed on a demurrer or motion to dismiss.

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Translated: I

CAN'T prove it.

doubleyouteeeff said...

Well, I CAN

mention documentaries (of REAL events) where one guy was killed, at the

killer's friend just stood there and watched, and the friend was charged

with being at the scene of a crime, and not taking reasonable steps to

prevent it.

LOL, once again, you are using a situation other than the one at issue. The "friend" acting as an accomplice in the wrongdoing is quite different than a third party, not acting in concert with the wrong doer. The latter has no obligation to intervene to correct the wrongdoing of another. You've still not come up with anything that indicates such a liability exists.

doubleyouteeeff said...

The obligation

is in the IMPLIED contract!

What implied contract? Do you even know what an implied contract is? An implied-in-fact contract is one that is inferred from the actions of the parties rather than an agreement, like the TOS at issue here, in which the parties have expressly laid out the terms of the contract. Both are valid contracts; but the terms of the contract are generally easier to discern in the express contract because the parties have committed to specific language that describes the rights and obligations of the parties. It is that language that the courts will look at when deciding the matter.

doubleyouteeeff said...

Translated:

I

CAN'T prove it.

No. Apparently, English comprehension isn't your strong suit, for your "translation" misses the mark. I meant exactly what I said: I could do

the research to come up with the CA cases, but I won't because I have

better things to do with my time. You are not my client and you are not

paying me to do the research. You want the specific answer to your

situation with the law neatly laid out proving it? Then pony up the

money and pay a lawyer to do it. That's what lawyers are there for.

Can't afford it or just don't want to spend the money for that? Not my

problem.

And if you hoped that by giving your "translation" you'd goad me into doing the research, you won't have any such luck. You want it, pay a CA lawyer for it. As i said, I'm done here—I'm just repeating my replies now, as it's clear you either don't grasp what I'm saying or simply don't want to believe it. Whichever one it is doesn't matter to me, but I'm done wasting my time going round and round on the same thing.

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