Emmett Soldati, Teatotaller back in court, taking on Facebook, Instagram

DOVER — Teatotaller cafe owner Emmett Soldati and Facebook had another day in court Wednesday when a hearing on the merits of Soldati's five-year-old case was heard by Judge Sawako Gardner.

Soldati was in Dover District Court for his case against Meta, Facebook and Instagram's parent company, for deleting the Instagram account of his business in June 2018 without giving a reason. The case was remanded back to the Dover court in a July 2020 decision by the New Hampshire Supreme Court.

"I am exhausted," Soldati said. "It has been five years for what could have been a simple decision. Every time we are here, I am gaslighted as they (Facebook) keep changing their arguments. All I wanted in the beginning is for them to clarify why they did this. When we asked what the violation was, they could not tell me, said they didn't know. How do they not know?"

Soldati marketed Teatotaller's Somersworth location on Instagram, which is owned by Meta/Facebook. Soldati has claimed Facebook’s deletion of Teatotaller’s Instagram account breached his business’ advertising contract with the platform. (Soldati has since opened a new Teatotaller location in Concord and closed the Somersworth location.)

In the 2020 decision, the New Hampshire Supreme Court unanimously sided with the Somersworth café Teatotaller in its breach of contract suit, overturning Soldati’s loss in Dover District Court. In doing so, the Supreme Court justices remanded the case back to the trial court, allowing Soldati to continue his pursuit of answers and legal remediation against Facebook for deleting Teatotaller’s Instagram account without warning or explanation.

Judge Sawako Gardner heard and dismissed the case on March 20, 2019. An appeal was filed in New Hampshire Supreme Court on Sept. 9, 2019, with the decision remanding it back to the lower court on Aug. 10, 2020.

Gardner heard the case again Wednesday. Soldati said she ordered the record kept open for 10 days to allow for additional material to be submitted.

"I got up there and provided my evidence," said Soldati, who is representing himself in the case. "My account was deleted for what they initially said was a violation of terms of service. We paid money to them as an advettiser for an account we lost, losing all imagery, contacts and followers. They can't even tell me to this day what was the violation."

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Soldati criticized the latest argument against him in the case.

"This time they said they believe I deleted my account, and then reopened it." he said. "That's ridiculous. We did open a new account, but I lost everything I had in the original account, lost advertising money and contacts. They submitted a memorandum, today that said I should be trying this case under California law, and why would I do that?"

Soldati is hoping to recover thousands of losses in advertising revenue. He has also asked for $10,000 in damages, the limit set in small claims court.

Soldati said it's unknown whether the @Teatotaller account was deleted due to content or other reasons, as Facebook has said in court it has no explanation or information.

Soldati is known locally for using his café and its social media accounts to support LGTBQ+ rights and acceptance, often describing the High Street business as a “queer hipster oasis.”

No matter the reason for the account deletion, Facebook previously argued it isn’t liable because it was protected by both Instagram’s terms of use and the federal Communications Decency Act of 1996. Tech companies have often used the CDA in courts across the country to obtain blanket immunity from claims involving the publishing or deletion of material on their platforms.

However, the Supreme Court justices presiding over Soldati’s appeal wrote the trial court erred in how it applied both the CDA and Instagram’s terms of use. They ruled in favor of Soldati’s assertion the trial court didn’t afford him the opportunity to present the evidence and merits required to determine whether the CDA applies, due to the limited nature of the arguments allowed in the court’s small claims process.

“We simply cannot determine based upon the pleadings at this stage in the proceeding whether Facebook is immune from liability under section 230(c)(1) of the CDA on Teatotaller’s breach of contract claim,” justices wrote in reversing and remanding the trial court’s decision. “For all of the above reasons, therefore, although Teatotaller’s breach of contract claim may ultimately fail, either on the merits or under the CDA, we hold that dismissal of the claim is not warranted at this time.”

They also ruled Soldati has “sufficiently alleged a claim for breach of contract” under the terms of use and state law.

Through that breach of contract claim, Soldati sought restoration of the account and asked for $9,999 in direct damages. Soldati was ultimately able to create a new Teatotaller account before the case got to trial court, but he hasn’t been able to restore the previous account’s content.

“Teatotaller alleged that it entered into the Terms of Use with Facebook regarding Teatotaller’s use of Instagram in exchange for fees,” the justices wrote. “Teatotaller further alleged that Facebook deleted Teatotaller’s Instagram account in violation of the terms of use, causing Teatotaller to ‘lose business and customers,’ for which Teatotaller requested ‘damages and the restoration of [its] account.’ Assuming the facts alleged by Teatotaller to be true, we hold that these allegations suffice in the context of a small claim action to state a cause of action for breach of contract.”

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Soldati has said a big reason why he took Facebook to court is because he believes the company has used the CDA to quash users’ attempts to hold it accountable.

“Facebook continues to use a federal statute to silence the claims of its varied users, and this is a very powerful piercing of that shield,” Soldati said of the justice’s remarks about the CDA. “Throughout this multiyear process, Facebook and their council have provided dozens and dozens — if not hundreds — of secondary material in reference to courts that have upheld this immunity or granted this immunity in some way. None of those were state supreme courts. What we now have is one of our highest ruling (courts) in this country that says, ‘No, that is an enforceable promise (according to your terms of service) … That cannot be disregarded because of this federal statute.”

Manchester attorney Gary Burt Michael, listed in the docket as representing Facebook, could not be reached for comment Wednesday.

Reporting by former Seacoast Media Group reporter Kyle Stucker is included in this report.

This article originally appeared on Fosters Daily Democrat: Emmett Soldati, Teatotaller back in court against Facebook, Instagram