I  was an active user on Digg until September of 2008.  I was banned for using a script.  That being said I still enjoy going through the front page of Digg to see what new and unusual content is out there. I am also active on Stumbleupon.  I recently came across a story regarding a Cease and Desist letter Digg sent to  a company called USocial. Without getting into massive detail, USocial allegedly sells positive votes for content submitted on Digg, Stumbleupon and Propeller.   A positive vote is a key basic element in propelling submitted content to the “Front Page” of these sites which in turn can generate thousands of unique user hits.  This occurs when enough positive votes are accumulated and whatever other algorithmic factors are satisfied depending on the particular social media site.  This is a big deal if your web site brings in advertising dollars.  When I wrote about using email lists to generate enough diggs and diversity to get my blog stories to the front page of Digg there was no money involved.  My blog has never had advertising. It was all for fun. USocial is the big time.  They would not be doing it if there were no market for it.  A blogosphere ready and willing to help them turn a profit. The obvious Digg correlation is that they either have a lot of  nobodys with huge active friend lists signed up or there are some Digg  “powerusers” selling Diggs.  The math is pretty simple.  That however presupposes that most of the USocial business is from Digg.  They could be making their money off of Stumbleupon or Propeller votes.  The relatively popularity of the  particular site is irrelevant.(Digg is by far the most popular) The issue would be what  social platform best helps the particular web site’s traffic.  That is where they will be buying the votes.

Cease and Desists letters are are not uncommon in the business world.  They are simply threats of legal action if person or company does not stop engaging in a certain type of behavior that the sender considers detrimental to its business and in violation of  particular principal of applicable law.  The sending of a Cease and Desists letter does not necessarily means that there is any legal basis to win the day in court.  It means an attorney has an argument that they will win the day.  They are also sent when there is no day to win.  They are  leveraged implied threats by companies that have money directed at offending companies and inviduals that do not have money for lawyers and protracted litigation.  The implied threat being that the  cost of the legal process itself will put them out of business.  The determining factor in their success is often a simple function of who the elephant in the room is.  The Cease And Desist from Digg to USocial as posted on Mashable allegedly reads as follows:

My firm represents Digg, Inc. (”Digg”). We have become aware that uSocial.net (”uSocial”) is paying users of www.Digg.com to manipulate content rankings on the Digg website. Digg hereby places you on notice that its website terms of use (located at http://digg.com/tos) expressly state:

IN ADDITION, YOU HEREBY AGREE THAT YOU SHALL NOT USE THE SERVICE (INCLUDING, WITHOUT LIMITATION, BY “DIGGING” ANY CONTENT) ON BEHALF OF (OR PER THE REQUEST OR INSTRUCTION OF) ANY THIRD PARTY. FURTHERMORE, YOU SHALL NOT REQUEST THAT ANY THIRD PARTY, OR PAY OR OTHERWISE ATTEMPT TO INFLUENCE ANY THIRD TO, MANIPULATE OR OTHERWISE AFFECT THE SITE IN ANY MANNER (INCLUDING, WITHOUT LIMITATION, BY PAYING ANY OTHER USER TO “DIGG” ANY CONTENT).

Pursuant to the website terms of use, your manipulation of Digg’s content rankings constitutes tortious interference with Digg’s agreements (i.e. its website terms of use) with the Digg users involved such activity.

Digg hereby demands that you immediately cease all attempts to have Digg users manipulate or otherwise affect the Digg service. Please provide us with written confirmation of your understanding of this matter within the next ten (10) days and assure us that the foregoing demands will be met.

This message should not be construed as a waiver of rights, an offer of settlement, or reliance on any specific facts or legal theories. Digg reserves all of its rights and remedies under applicable law.

If you have any questions or comments, please do not hesitate to contact me at

This is not the first time the Cease and Desist has been used to stop gaming, bots and the like.   MySpace was involved in a publicized battle with the commercial marketers of Bot programs such as Friend-Adder and Badder-Adder These programs automated friend adding and commenting protocols bypassing the Myspace captcha safeguards.  MySpace sent Cease and Desist letters to these companies briefly shutting many of them down.  It is important to note that the companies that shut down did not do so by court order but voluntarily.  Myspace had the financial leverage to scare them into shutting down if just temporarily. In that situation they were the elephant in the room.   As the scripts circulated and were improved upon, new companies popped up as fast as the old ones shut down.  With the exception of suing spam king Scott Richter and instituting some onerous captcha and sophisticated I.P.tracking they finally gave up chasing after these bot developers.  The MySpace pursuit logic was that these bots violated state and federal anti-spam laws as they allowed people to bypass the captcha spam safeguards and send tens of thousands of comments to its membership base.

I will break down Digg’s letter point by point addressing the legal issues:

“ IN ADDITION, YOU HEREBY AGREE THAT YOU SHALL NOT USE THE SERVICE (INCLUDING, WITHOUT LIMITATION, BY “DIGGING” ANY CONTENT) ON BEHALF OF (OR PER THE REQUEST OR INSTRUCTION OF) ANY THIRD PARTY. FURTHERMORE, YOU SHALL NOT REQUEST THAT ANY THIRD PARTY, OR PAY OR OTHERWISE ATTEMPT TO INFLUENCE ANY THIRD TO, MANIPULATE OR OTHERWISE AFFECT THE SITE IN ANY MANNER (INCLUDING, WITHOUT LIMITATION, BY PAYING ANY OTHER USER TO “DIGG” ANY CONTENT).”

This in itself probably has no legal implications with regard to USocial.  USocial as a company is not a party to the Digg Terms Of Use. They have no contractual relationship with Digg.  By paying people to Digg or charging for Diggs, they are not breaching any agreement.   Digg’s contractual breach issue would be with the Digg members they are paying.  Digg would have to track individual members down and take action against them for violating Terms Of Use.  Digg could in fact attempt to do this in a lawsuit against USocial by subpoenaing their records for the list of Diggers they are paying.  This would be a cumbersome way to go as it would be difficult for Digg to continue chasing these people down.  A reason similar to why Myspace allegedly gave up.

“Pursuant to the website terms of use, your manipulation of Digg’s content rankings constitutes tortious interference with Digg’s agreements (i.e. its website terms of use) with the Digg users involved such activity.”

Since Digg has no contractual privity with USocial they attempt to classify USocial activity as a third party tort entitled “tortious interference with contract” What is tortious interference with contract?  California law would probably apply in any lawsuit filed. I will address it under general tort principals.

The general elements of tortious interference with contractual relationships  are: (1) the existence of a contract subject to interference; (2) the occurrence of an act of interference that was willful and intentional; (3) the act was a proximate cause of the claimant’s damage; and (4) actual damage or loss occurred.

Digg first must prove the existence of a contract subject to interference.  Is The Digg Terms Of User agreement a legal enforceable agreement? There is case law out there regarding “click wrap” agreements. They are generally enforceable.  A party posts terms on its website pursuant to which it offers to sell goods or services. To buy these goods, the purchaser is required to indicate his assent to be bound by the terms of the offer by his conduct — typically the act of clicking on a button stating “I agree.”  Once the purchaser indicates his agreement to be bound, the contract is formed on the posted terms, and the sale is consummated. No paper record is created nor is the signature of the purchaser required. While the Digg Terms Of Use are not as bulletproof as a click wrap here are the general elements of enforceability:

1. The user must have adequate notice that the proposed terms exist;
2. The user must have a meaningful opportunity to review the terms;
3. The user must have adequate notice that taking a specified, optional action manifests assent to the terms; and
4. The user must, in fact, take that action.

So does Digg have an enforceable Terms Of Use Agreement that can be tortiously interfered with?  It would have to be evaluated on a case by case basis.  The Digg Terms Of Use is not a “community contract”.   In many cases the people behind the avatars are not who they say they are and in some cases may not even have the capacity to contract(they lied about their age in signing up).   They key point being is that if there is an enforceable agreement it is not with the Digg community but with each end user/Digger who agreed to be bound by the Terms Of Use.  This creates  practical and logistical problems for Digg in a tortious interference case against USocial.  In order to prevail they would probably have to prove up individual user agreements that were interfered with.  They would have to prove up the standard elements of a contractual agreement. USocial can not interfere with a contract that is void or does not exist in the first place.

Digg will have to prove that USocial is recruiting  people with valid contractual agreements with Digg and inducing them to breach that agreement.  What if the Diggers are coming voluntarily to USocial?  Does that change the analysis?  They will then have to prove damages.  That would be worth the price of admission in itself. Digg would to an extent have lay out its business model and inner workings.  I suspect much of that evidence wold be produced under seal(shielded from the public). The other price of admission event would be when USocial is forced to turn over the list of people it has selling Diggs. Expect a whole new wave of bannings when that happens. The names may suprise a lot of people.  The point is that shutting down USocial and others companies that may spring up selling Diggs, Stumbles, Reddit Votes, is more complicated than sending out a  Cease and Desist letter. This is especially true if they have some money behind them and their own attorneys.  I suspect USocial has attorneys who may agree with me.  As of the writing of this article they are still up and running.

It may also be possible for Digg to obtain a Temporary Restraining Order(TRO) prohibiting USocial from inducing any more Diggers to breach their Terms Of Use agreements. To my knowledge the issue has never been litigated and no temporary restraining order or injunction obtained.  The general elements Digg would have to show are :

A  likelihood of success on the underlying tortious interference claim; irreparable harm for which it has no adequate remedy at law;that greater injury will be suffered from denying the order, and that the granting would not disserve the public interest.

I suspect this would be the next  thing Digg does if they are serious about shutting USocial down.  In order to get the restraining order and injunction they would have to convince a judge that they will in all likelyhood win the underlying tortious interference claim.  This is like a “mini-trial” where a  lot of the same evidence is layed out.  They will also have to show that they have no other adequate remedy at law. USocial will certainly claim Digg has  other remedies.  Is their a way for Digg to identify and go after its own offending member base?  If there is they may not be entitled to a TRO against USocial.   Digg will have to show they are suffering irreparable harm.  They will have to lay out to an extent their algorithim and business model and how the selling of Diggs affects this. They will then have to translate that into damages.  The argument would probably be that if people game the system, it loses its integrity,no one buys advertising, other revenue streams go away and the company fails.  An intersting part of this is that they have to be currently suffering irrperable harm. How will they prove this up?  They would probably have to show that they have actually lost revenue due to the activities of USocial.   If they are successful with this they could turn  TRO into a permanent injunction. That would  be end of USocial.  In a month somone will pop up to take their place.  As long as there is money to be made the Digg Cease and Desist lawyers will stay busy.