Teatotaller

Emmett Soldati, owner of Teatotaller in Somersworth, is planning to expand to second location in Concord.

CONCORD — The owner of the Somersworth café Teatotaller is taking a lawsuit against Facebook to the New Hampshire Supreme Court for breach of contract over an Instagram account.

Emmett Soldati is challenging a lower court ruling that granted Facebook’s motion to dismiss the case he initiated as a small-claims matter after Teatotaller’s Instagram account vanished in June 2018.

Soldati said he repeatedly ran into dead ends as he sought an explanation from Instagram and Facebook, which owns Instagram, as to why the business account he paid for and relied upon for advertising for the café had disappeared.

“We never got an email saying, ‘Hey, you did this on your account and so we deleted your account and here’s why and here’s what you can or cannot do.’ There’s never been any of that,” Soldati said Monday. “Presumably our day in court would have included some conversation around why it got deleted.”

Although he was able to create a new Instagram account for Teatotaller, Soldati felt he lost business when the initial account was taken offline, and he filed the small-claims case seeking damages. Soldati got as far as a hearing in Dover District Court, where a judge last February granted Facebook’s motion to dismiss, finding that the terms of use under the Instagram contract barred the claim. Facebook also maintained it was immune from the claim under the federal Communications Decency Act (CDA), and the judge concurred.

Soldati disagreed and continued to pursue the legal battle with an appeal to the state’s highest court. The New Hampshire Supreme Court accepted the case in August, leaving Soldati with the task of writing his own legal brief.

Soldati argues that the terms of use ultimately left him no legal remedy and instead provided Facebook with blanket protection.

“As it turns out, the TOU (terms of use) were used to deceive the Plaintiff into a faulty arrangement — one where the recourse that already appeared to be so narrow, turned out to be no recourse at all,” Soldati wrote in his brief. “The Circuit Court should not have enforced a contract that is unenforceable under state law and runs contrary to public policy and the basis of all contract law.”

Facebook responded with its own brief, filed last week by a Vermont attorney who is licensed to practice in New Hampshire.

Attorney Stephen Soule argued that the District Court judge correctly ruled on the immunity standard and maintains that the company is not liable for the claim presented by Soldati.

“In sum, the trial court correctly decided both that the Terms of Use bar Plaintiff’s claim and that Section 230©(1) of the CDA immunizes Facebook against Plaintiff’s claim. This Court should thus affirm the trial court’s dismissal of Plaintiff’s claim on either ground,” Soule wrote in the brief.

Both Facebook and Soldati are asking the Supreme Court to grant them a hearing to present oral arguments.

The son of a former prosecutor, Soldati said he plans to continue to litigate the matter on his own, although he has consulted with his father. He said Instagram remains a tremendous marketing resource for Teatotaller, which opened in 2011 and bills itself as “an oasis of queer, hipster, tea, coffee, and pastry goodness.” Soldati is in the process of expanding with a second location to open in Concord.

“We’re a food and retail business. We’re a hospitality business, so photographic and visual storytelling in that way is key. Instagram was like really everything for us,” Soldati said.

“Instagram really was our digital storefront in a lot of ways. It was just sort of a shock to realize we actually had no control over that.”

Recommended for you