Facebook Gets Easy Section 230 Win in DC Circuit–Klayman v. Facebook

A Facebook user posted an anti-Semitic page entitled “Third Palestinian Intifada.” Many people objected to the page, but Facebook allegedly dragged its feet before eventually removing the page. For reasons I’ve never fully understood, Klayman (a lawyer, naturally) felt wronged by Facebook’s delayed takedown and sued Facebook (and Zuckerberg too, because why not?). Facebook defended on Section 230 grounds and got an easy win in the district court. On appeal, the DC Circuit cleanly affirms the ruling. The opinion highlights:

* the court accepts that Section 230 can be raised on a motion to dismiss “if the statute’s barrier to suit is evident from the face of the complaint.”

* Zuckerberg qualified as a “provider” of Facebook and therefore was eligible for Section 230 immunity.

* The court rejects Klayman’s nonsensical argument that Section 230 fails if the provider “can control the contents posted on [its] website.”

* Klayman’s claims treated Facebook as the publisher of third party content because (cites removed):

the very essence of publishing is making the decision whether to print or retract a given piece of content—the very actions for which Klayman seeks to hold Facebook liable. Specifically, the assault count of the complaint turns on Facebook’s allowing the Third Intifada pages to exist on its website in the first place. And the negligence claim relies on the timing of Facebook’s removal of the pages.

* The court also rejects another nonsensical argument that Facebook lost Section 230 protection because its user agreement said “We do our best to keep Facebook safe…” This is a poorly constructed attempt to use a contract claim to work around a Section 230 defense. The court provides several reasons why the argument fails, including:

to the extent that Klayman means, instead, that any such statement allocating rights and responsibilities between interactive computer services and their users by itself gives rise to a heightened state-law duty of care in publishing, that argument fails. State law cannot predicate liability for publishing decisions on the mere existence of the very relationship that Congress immunized from suit. In other words, simply invoking the label “special relationship” cannot transform an admittedly waived contract claim into a non-preempted tort action.

In all, an easy case and a nice Section 230 win.

Case citation: Klayman v. Zuckerberg, 2014 WL 2619847 (D.C. Cir. June 13, 2014)