Section 230 Helps Facebook and TikTok Defeat Claim Over Harassment Campaign–Winter v. Facebook

The plaintiffs claim a third party, Dolan, “engaged in a pattern of behavior that resulted in the harassment of the Plaintiffs on her social media accounts” due to “Facebook and TikTok’s failure to take down [ ] false abusive posts and/or posts containing [P]laintiffs [sic] personal identifying information for the purposes of stalking and harassment.” Facebook and TikTok easily defeat the negligence claim on Section 230 grounds.

ICS Provider. “Plaintiffs do not dispute that Facebook and TikTok are ‘interactive computer service[s].’ Indeed, courts have found that Facebook qualifies as such. Likewise, courts have described video-sharing websites and social media applications with features similar to TikTok such as YouTube and Vimeo, as ‘interactive computer services.'”

Third-Party Content. “Plaintiffs acknowledge that the objected-to information was provided by third party users.”

Publisher/Speaker Claims. “Plaintiffs seek to hold Facebook and TikTok liable for not removing the content/accounts posted/held by Dolan and her group, which they find objectionable. The decision whether to publish, withdraw, postpone, or alter content are traditional editorial functions of a publisher.”

The plaintiffs also sued TikTok for terminating their accounts, but the court says that’s still third-party content. Cite to Wilson v. Twitter.

Section 230(c)(2)(A). The plaintiffs argued that Facebook and TikTok cannot qualify for Section 230(c)(2)(A) because the content violated their community standards and yet they didn’t act. The court says that the defense is only relying on Section 230(c)(1), which does not have a good faith prerequisite. Also, the court says Section 230(c)(2)(A) “was inserted not to diminish the broad general immunity provided by § 230(c)(1), but to assure it is not diminished by the exercise of traditional publisher functions.”

Constitutionality of Section 230. The plaintiffs also challenged the constitutionality of Section 230. The court responds simply: “Plaintiffs cite no authority in support of their contention and numerous courts have rejected similar arguments,” citing Lewis v. Google (district court ruling; 9th Circuit affirmance) and others. Other possibly relevant opinions the court didn’t cite: Divino v. Google, Richard v. Google, ADFI v. Lynch.

Note that Trump is challenging the constitutionality of Section 230 in his bogus lawsuits against the social media companies, and the DOJ stirred up some buzz last week when it intervened in the Twitter case to defend 230’s constitutionality–despite the fact that everyone in DC, including the DOJ, hates Section 230. [Most coverage didn’t note that the DOJ had previously intervened in the Newman and Divino cases to defend 230, so the DOJ’s move in the Trump case wasn’t novel or surprising]. I can’t imagine Trump’s constitutional attack on Section 230 will do any better than the prior failed attempts.

Negligence Duty. The plaintiffs claimed that Facebook and TikTok created duties to the plaintiffs by adopting their community standards. The court says that Section 230 preempts this duty.

Case Citation: Winter v. Facebook, Inc., 2021 WL 5446733 (E.D. Mo. Nov. 22, 2021)