General Intellectual Property Litigation

Bloggers Lawsuit Against HuffPo Dismissed

Last Friday, Judge John Koetl of the Southern District of NY threw out a purported $105 million lawsuit brought against the Huffington Post by a class of unpaid bloggers. The lead plaintiff was political gadfly Jonathan Tasini who has mounted several unsuccessful campaigns for federal office, against Hillary Clinton, Charles Rangel and Kirsten Gillibrand.

Having not done so well in the political arena, Mr. Tasini found some lawyers willing to bring what can only be described as a silly lawsuit against the popular e-magazine. Tasini and the other plaintiffs are a group of bloggers who regularly contribute content to the Huffington Post. When they agreed to do so, they were explicitly told three things: (1) You will not be paid; (2) We will not tell you how many people are looking at your content or any other content on the site; (3)In return, you will get free publicity and the right to re-post your blog on your own Facebook, MySpace(remember MySpace?) and Twitter accounts.

When the Huffington Post was sold to AOL for a cool $315 million this lawsuit was brought to say “What about our share?” Figuring it would be difficult to make a claim for breach of contract, when their contact clearly says they would get no compensation or information, counsel for plaintiffs decided to sue under NY’s General Business Law section 349, which protects consumers from fraudulent claims.

Judge Koetl found two minor flaws with this argument: plaintiffs are not consumers and plaintiffs were not defrauded:

The plaintiffs are not “consumers” in any reasonable
interpretation of the word; rather, they participate in
producing the content that is consumed by visitors to The
Huffington Post. Those who produce content for others to
consume cannot be said to be “purchas[ers of] goods and
services.” Med. Soc’y of State of New York, 790 N.Y.S.2d at 80.
Thus, the Complaint fails to state facts indicating that
the defendants’ alleged misleading conduct was consumer oriented.

Additionally, the plaintiffs knew that they
were not going to be compensated, and there was no materially
misleading statement as to that essential fact. Rather, the
plaintiffs were explicitly made aware that they would receive
“exposure . . . in lieu of monies.” (FAC ¶ 215.) Finally, it
is unclear how The Huffington Post’s presenting itself as a
“free forum or platform for ideas” is inconsistent with the fact
that The Huffington Post generated profit. (FAC ¶ 214.) The
plaintiffs have thus failed to allege that the defendants
misrepresented the for-profit status of The Huffington Post in
any way.

I read this decision and the motion several times because frankly , I could not believe it was that straightforward. These folks signed an agreement to blog for the HuffPo and were told upfront and in writing they wouldn’t get paid. How could they not know that HuffPo was generated massive amounts of advertising dollars and page views? Are they blogging from some cave in the Siberian Hinterlands? Did they not actually ever read the Huffington Post? I suspect this was another attempt to grab some attention, maybe score some quick bucks should AOL’s lawyers decide to put up nuisance value. The plaintiffs and their lawyers are lucky that the court did not award attorney’s fees for filing of a frivolous action.

Hopefully the HuffPo will tell the plaintiffs that their content is no longer needed and they can go try and find some other outlet for their blog posts that generates 26 Million page views a month. If they were unable to turn that kind of exposure into profit, the fault lies not in the HuffPo but in themselves and the content they are posting.

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