Facebook Not Liable for Private User Groups Per 230–Finkel v. Facebook

By Eric Goldman

Finkel v. Facebook, Inc., 2009 N.Y. Slip Op. 32248 (N.Y. Sup. Ct. Sept. 15, 2009)

This is a really interesting legal dispute with an entirely predictable outcome for Facebook as a defendant. See my initial blog post on the matter. A half-dozen high school students participated in a private Facebook group that ridiculed one of their peers. This wasn’t a nice thing to do, and the conversation exhibits the kind of mean-spirited puerile comments forged by the insecurities and social pressures of high school. Whether the underlying conversation is actually tortious remains unresolved, but I have my doubts.

Nevertheless, we knew all along that Facebook wasn’t liable for its users’ private group or their conversations per 47 USC 230. This wasn’t even close to a colorable question. The plaintiff’s lawyer mistakenly read the law differently and unwisely sued Facebook. To get around 230, he alleged that Facebook took an ownership interest in the private group’s messages, which he argued should cost Facebook its 230 immunity. There are at least two problems with this theory, though. First, Facebook doesn’t take anything close to ownership in private group messages; at most, I believe they take a limited non-exclusive license. Second, even if Facebook did take ownership of the group’s contents, 230 applies to third party-created online content irrespective of the ultimate IP ownership of the content. Several cases support that proposition, including Blumenthal v. Drudge from 1998 and Schneider v. Amazon.com from 2001. Here, the court makes the point emphatically, saying “Ownership of ‘content’ plays no role in the Act’s statutory scheme.”

Given this very clear and plainly stated proposition, the trial court judge gives Facebook its deserved early exit from the case per 230, correctly labeling the plaintiff’s argument “meritless.” Fortunately for the plaintiff’s counsel, the court decided not to grant sanctions to Facebook, saying that the argument wasn’t “frivolous.” Future plaintiffs with similarly misguided theories about 47 USC 230 may not be so lucky.

For more, see CMLP.