The Volokh Conspiracy
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Lawsuit Over Nieman Journalism Lab (at Harvard) Outing Commenter Can Go Forward
The plaintiff is Francesca Viola, who wrote the comment when she was a journalism professor at Temple University.
This decision was just handed down today by Judge Leo Sorokin (D. Mass.), in Viola v. Benton. An excerpt of the facts, as alleged by the plaintiff in her Complaint:
The Nieman Journalism Lab ("Nieman Lab") is owned by the Nieman Foundation for Journalism at Harvard University. Defendant Joshua Benton, a journalist, is the founder and director of the Nieman Lab and an employee of Harvard University. The Nieman Lab operates a website, located at www.niemanlab.org. In May 2018, the Nieman Lab used Disqus to allow readers to post comments to articles published on its website.
On May 4, 2018, the Nieman Lab posted an article titled "People Who Are Delusional, Dogmatic, or Religious Fundamentalists Are More Likely to Believe Fake News." Viola posted an anonymous comment to this article using the display name truthseeker in response to another comment criticizing the article. Viola's comment in response to the comment of a critic of the article read:
truthseeker: I am a journalism professor at a major east coast university and I completely agree with you. I follow Nieman but this is an article designed to insinuate that 1) Trump supporters who happen to be religious are delusional 2) conservative media that don't tout the democrat party talking points are disseminating 'fake news.' I will no longer use Neiman as a source.
Benton read Viola's comment. As director of the Nieman Lab, "Benton had administrative access to view Viola's email address associated with [her] comment," and he used his administrative access to identify Viola as "truthseeker." Benton located all of the above quoted comments made under the display name truthseeker….
Later that day, Benton posted a series of tweets about comments by truthseeker, accompanied by screenshots of the comments. These tweets were posted from his personal Twitter account (@jbenton), which included a bio stating, "I run @niemanlab at Harvard." Benton's first tweet, which included a link to the Nieman Lab article and a screenshot of Viola's truthseeker comment, stated:
@jbenton: I think that this attitude — permanently rejecting a news source because it accurately reports something you don't like — is exactly what you want in a journalism professor, yes? Also, spell our name right, Francesca Viola of Temple University.
Benton followed this tweet with five additional tweets displaying and commenting on screenshots of truthseeker comments that were originally posted on articles in other publications…..
Benton's tweets drew "immediate media attention which generated numerous articles about Viola that appeared in print and online as well as broadcast news coverage." Because of the tweets, Viola "immediately became a social pariah at Temple and within her community," and her colleagues demanded her firing and published an editorial criticizing her in the Temple University school newspaper. She also received dozens of harassing emails and phone calls, which caused humiliation and emotional distress. Ultimately, Viola lost her job at Temple.
The court rejected plaintiff's breach of contract, intrusion upon seclusion, disclosure of private facts, intentional infliction of emotional distress, interference with contractual relations, false light, and (with one exception) defamation claims, but had this to say about one of the promissory estoppel claims:
Viola alleges the following: First, "[a]s a website that uses the Disqus platform, Nieman Lab, and by extension Defendant[s] … are bound by the BRDPS." Second, she points to the following language from the BRDPS:
Websites or website representatives, including site moderators, publishing inappropriate content or exhibiting inappropriate behaviors in connection with their use of the Service may have their Disqus account and/or Disqus forum suspended or terminated.
The following are not allowed on sites that use Disqus: …
Deceitful data collection or distribution
User information is for moderation purposes only and collecting any information in a misleading way is prohibited. Distribution of personal identifiable information is prohibited.
Viola claims that she "agreed to the terms of and reasonably relied upon the assurances of the Harvard Privacy Policy and the Disqus Policies when accessing and commenting on the website." And finally, her "reliance was reasonable and expected under the terms of the Harvard Privacy Statement and Disqus's BRDPS which she understood were binding for use of the Nieman Lab website."
Evaluating under the standard applicable to the pending motion to dismiss, these allegations are sufficient to plausibly state a promissory estoppel claim based on the BRDPS. Given that the Nieman Lab used Disqus as a platform, Defendants could reasonably expect Viola to rely upon the BRDPS as a promise of how her information would be treated when she left comments on Nieman Lab articles. Viola alleges that she took specific action—commenting on a Nieman Lab article under the pseudonym truthseeker—based on the promise that her user information would be used for "moderation purposes only," which was violated when Benton posted her information on Twitter….
I should add that the court seems to be open to a promissory estoppel theory even without a showing that Viola was intended by Disqus and NeimanLab to be a third-party beneficiary of the BRDPS (even though the court rejected Viola's separate breach of contract theory, on the grounds that she didn't allege that she was a third-party beneficiary).
But there appears to be some authority for that. Section 90 of the influential Restatement (Second) of Contracts states,
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.
And some courts have said (though others have disagreed) that, "Application of this section, while clearest in the case of an intended third party beneficiary, is not limited to such. See Murray on Contracts § 66.B.2, at 281 ('The Restatement 2d version of § 90, however, would also permit a recovery by a third party who justifiably relies [on the promise made to the promisee] even though such party is not an intended beneficiary')." Pennsy Supply, Inc. v. Am. Ash Recycling Corp. of Pa., 895 A.2d 595, 606 (Pa. Super. Ct. 2006).
