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LinkedIn Email-Hijacking Lawsuit Update: Company Claims Free Speech

Does a company have a First Amendment right to spam the crap out of you on behalf of your friends who (via a browsewrap license terms-of-service agreement that they never read) said that they wanted to contact you (only once)?

Whew, that's a mouthful, but that's pretty much what LinkedIn is arguing to Judge Lucy Koh, who's presiding over yet another tech trial in Silicon Valley. Judge Koh previously ruled that users had consented to an initial email invitation to friends, but not necessarily to the multiple follow-ups.

Now, LinkedIn is arguing that it has a free-speech right to "facilitate associations among people and therefore concern matters of public interest," reports MediaPost.

The Email Hijacking Lawsuit 1.0

Over at FindLaw's California Case Law Blog, we discussed the initial complaint: a class-action lawsuit alleging that the company's email practices included sending too many messages on users' behalf and without their knowledge.

The allegations in the complaint were interesting: a lot about deceptive web design, "hacking" into logged-in email accounts to harvest contacts' information, and a hidden terms-of-service link written in grey font -- one wonders how the recent "browsewrap" decision out of the Ninth Circuit plays into that, if at all.

LinkedIn Pleads Free Speech

At the time, the plaintiffs argued that they hadn't agreed to having any emails sent on their behalf, but Judge Koh found that users had agreed to an initial email (likely via the terms of service). But that still leaves the other 987,432 emails in my inbox reminding me about invitations from sweet strangers.

LinkedIn argues that it has some sort of free speech right to send the spam. "As a platform for creating professional networks of people, LinkedIn promotes the rights of speech and association guaranteed by the First Amendment," the company said in a recent motion obtained by MediaPost. "Accordingly, reminder emails, which refer recipients to communications from LinkedIn members expressing their desire to connect ... facilitate associations among people and therefore concern matters of public interest."

There are so many things going on here that I don't know where to start. They're kind of arguing that it's their speech, but not really -- this is kind of a "we're exercising our users' free speech/right of association" argument ... I think. Oh, and because of something with associations, it becomes a matter of public interest?

It sounds like First Amendment Mad Libs -- hopefully their full pleading made more sense.

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