Facebook Isn’t Liable For Fake User Account Containing Non-Consensual Pornography–Caraccioli v. Facebook (Forbes Cross-Post)
The applicable federal law, 47 USC 230 (Section 230), has been on the books for over 20 years, and it’s extremely clear: websites aren’t liable for third party content. Caraccioli acknowledged that an unknown third party created the fake Facebook account, so the court easily concluded that Section 230 eliminates Facebook’s liability for it. Caraccioli argued Section 230 didn’t apply because Facebook “reviewed [the fake account] and decided not to remove it,” so this case involved “editorial inaction rather than affirmative editorial action.” Plaintiffs have unsuccessfully tried these arguments many times before, and the arguments didn’t work this time either (the judge cites, among other cases, Sikhs for Justice v. Facebook, Klayman v. Facebook, Fair Housing Council v. Roommates.com and Barnes v. Yahoo).
Clearly, years of Section 230 litigation have produced a powerful insulating wall surrounding online intermediary defendants–sufficient enough to protect against relatively straightforward claims like this. This wall helps defendants even in the Ninth Circuit, where murky appellate rulings like Roommates.com can give plaintiffs false hope. (Like the super-majority of cases citing Roommates.com, this court cited it to support the defense). This defense-favorable wall doesn’t weaken when third party-posted non-consensual pornography is involved. For example, this ruling is consistent with the uncited GoDaddy.com v. Toups case (the Texxxan case), where a Texas state appellate court held that Section 230 protected GoDaddy from legal liability for hosting third party content that included non-consensual pornography.
Although we’re sympathetic to how the fake account harmed Caraccioli, he chose the wrong defendant. If Caraccioli could find the perpetrator, he should have much greater success in court. I’m maintaining a roster of over 15 unpublicized non-consensual pornography cases where plaintiffs have won in court (I hope to write up this research later this year), and Caraccioli’s facts are similar to some of these other rulings. Caraccioli just needs to leave Facebook out of it.
The court’s opinion has two other noteworthy points. First, Caraccioli belatedly sought to add a publicity rights claim against Facebook. The court doesn’t allow him to do so because Section 230 also preempts publicity rights claim in the Ninth Circuit (based on the uncited ccBill case). Second, Facebook argued that its Terms of Service (TOS) precluded Caraccioli’s claim, irrespective of Section 230, because the TOS says things like “We are not responsible for the conduct, whether online or offline, of any user of Facebook.” The court says these disclaimers, which Caraccioli ratified by citing the Facebook TOS in his complaint, negated the “republication” element required to establish several of Caraccioli’s claims. This is a novel analysis by the court, and it could inspire other online service providers to include or expand similar self-serving disclaimers of responsibility.