Huffington Post Bloggers’ Claim: Likely Loser
Thousands of bloggers have sued the blog, Huffington Post, claiming entitlement to pay for posts made over the years. They demand 1/3 of the take from the blog’s pending sale to AOL for $315 million. They say they conferred a benefit on the blog by their posts, warranting payment. What are the chances of this claim prevailing? Close to zero.
Ordinarily, contract law enforces bargains when they are made before performance is rendered. If HuPo agreed to pay bloggers for posts ahead of publishing them, the arrangement would follow the standard pattern and be enforceable. But contract law does not recognize the opposite sequence, performance before bargain. People conferring benefits without bargains are usually seen to act gratuitously.
There is a rationale behind this doctrine: any other rule would mean that people could impose contract duties on others simply by conferring benefits on them. In such a world, expect mail order companies shipping unordered goods for payment, squeegee windshield washers making enforceable claims for money, and neighbors doing more to each other’s homes than anyone would want.
But a principle called “restitution” reflects the limit to the doctrine. In some situations, denying compensation is simply unjust, such as when someone confers benefits on another who either requested them or accepted the benefits. Courts construe this exception narrowly, however, to avoid condoning behavior the law calls “officious” under a doctrine that denies such compensation to “officious intermeddlers.”
People conferring unrequested benefits are not entitled to compensation, however valuable or beneficial such actions may be. But people conferring requested benefits stand a chance—though a slim one at best and one close to zero in the case of the bloggers. Two classic examples of this law of “quasi-contracts,” often taught in Contracts classes in law schools, jump out.
Terry Brady, an Alaskan citizen, when bidding to buy land from the state, offered to prepare plans for the surrounding area in an attempt to battle a beetle epidemic ravaging forests. The state accepted Brady’s offer and Brady prepared and submitted the plan, which the state accepted. When he thereafter sought payment, the state declined, stressing they had never discussed nor contemplated any payment.
Brady conceded absence of an express contract, as the HuffPo bloggers must. This required Brady to show that he conferred a benefit on the state, without intermeddling, and that it would be unjust for the state to keep the benefit without paying for it. He could not sustain this burden. It was not unjust for the state to keep the benefit of the work because it was performed without expectation of pay. Furthermore, Brady’s purpose in doing the work was not to earn a fee; rather, it was to gain a business advantage, namely the chance to win a timber-sales contract. Because there was no discussion of compensation, Brady was a mere volunteer.
In another analogous case, James Martin, a law student, wrote to Bantam Books, saying portions of a paperback edition of one of its books, How to Buy Stocks, was plagiarized in Planning Your Financial Future. The letter offered to provide a copy of the book, in which Martin highlighted and annotated plagiarized passages. The publisher invited Martin to send his proffered copy. His work eventually helped the publisher to win a copyright infringement case against the authors and publishers of the infringing book. The publisher sent Martin an honorarium for $250. Martin wanted more, claiming a 1/3 share in that recovery.
Martin could not claim that an actual contract had been formed, so he pushed for restitution in quasi-contract. He argued that a promise to pay the reasonable value of a service is implied in cases like this, where people provide a service that is usually charged for, with the recipient knowing about it and keeping the benefit. The publisher responded that this principle applies only when circumstances justify the conferring party in expecting to be paid.
The benefit must not be given as a gratuity and the person benefited must do something from which a promise to pay may be inferred. When circumstances suggest something is offered voluntarily, the publisher argued, no intention to pay can be inferred. The court sided with the publisher, finding that Martin was a volunteer, not entitled to restitution.
These precedents show the weaknesses in the HuffPo bloggers’ case. The bloggers are much like Brady and Martin. They offered to post and the site allowed them to do so—they are mere volunteers. They may have conferred a benefit on the blog, at the blog’s request, but in doing so had no reasonable expectation of payment. Indeed, they gained the benefit of free, valuable cyberspace, to air their views. It is not unjust to withhold restitution in quasi-contract. That’s so as a matter of both doctrine and policy.
Brady v. Alaska, 965 P.2d 1 (Alaska 1998).
Martin v. Little, Brown & Co , 450 A.2d 984 (Pa. Super. 1981).
As an owner of interests in the firm that operates this blog, I have a conflict of interest: our many guest bloggers over the years have contributed great posts on a voluntary basis without any promise or expectation of financial gain. When this site is sold to AOL for $315 million, I would stand by the arguments made in this post.