WTF Is Going On With Section 230?–Cross v. Facebook

It’s been a tough year for Section 230. In one case after another, I’ve had to “explain away” Section 230 losses:

* Doe #14 v. ModelMayhem. The 9th Circuit embraced a dubious “failure to warn” exception to Section 230.
* E-Ventures v. Google. “Bad faith” allegation overcomes Section 230(c)(2) motion to dismiss.
* Adblade v. RevContent. Allowing a lawsuit to proceed that would potentially hold an ad network liable for third party ads.
* Tanisha v. Chandra. “Conspiracy” allegations overcome Section 230 dismissal.
* Diamond Ranch Academy v. Filer. Summaries of third party content isn’t protected by Section 230.
* Maxfield v. Maxfield. Email-forwarding screenshotted tweets isn’t protected by Section 230.
* Vision Security v. Xcentric. Section 230 denied because Ripoff Report isn’t a “neutral publisher” (sorry, I can never write that term without pointing out it’s an oxymoron).
* J.S. v. Village Voice. Section 230 dismissal denied when plaintiff alleges the defendant “did more than simply maintain neutral policies prohibiting or limiting certain content.”
* General Steel v. Chumley. Section 230 denied if defendants selectively edited content to create a desired meaning (a variation on the oxymornon of neutral publishers).
* Xcentric v. Smith. Allegations that content was created by someone acting like an agent defeats Section 230.
* AdvanFort v. Maritime Executive. How content is bylined might affect Section 230.
* Song Fi v. Google. No Section 230(c)(2) defense for removing video as “objectionable content” if Google’s underlying concern was view count inflation.

(Whew, collecting these defense losses into a single post was exhausting!)

Of course we’ve also seen numerous routine Section 230 defense wins during this time period, but the exceptions stand out because each one of them threatens to undermine Section 230’s broad immunity. And with so many losses temporally bunched together, I’m wondering what’s going on? Maybe it’s just a giant coincidence, or perhaps there’s a more systemic explanation. Are defendants stretching the limits of Section 230? (Unquestionably that has been a factor). Are these losses the result of prior defense losses expanding into bigger and bigger exceptions? Are judges too skittish about motions to dismiss? Are judges engaging in judicial activism against Section 230? Are these results a microcosm of a larger global trend against free speech? (Perhaps in a separate blog post, I’ll organize my thoughts about how the forces of censorship are having a banner year across the globe).

Sorry for the long windup. Today’s case is the latest entry in the “Section 230 WTF?” genre. The case involves a fairly routine case against Facebook for failing to remove negative user content. Facebook has easily won several similar cases, including the Sikhs for Justice (technically a removal case, but the principles are similar), Caraccioli and Klayman cases. The court correctly applies Section 230 to several of the plaintiff’s failure-to-remove claims of breach of contract, negligent misrepresentation and negligent interference with economic advantage). The plaintiff attempts a typical Barnes-style promissory estoppel workaround predicated on Facebook’s user agreement, and the court easily rejects that.

If the court had stopped there, this case would be another routine Section 230 defense win. Unfortunately, it all goes to shit with the plaintiff’s publicity rights claim, which the court does not dismiss. (Facebook brought an anti-SLAPP motion to strike; the court says the publicity rights claim, and a derivative unfair business practices claim, demonstrated sufficient merit to overcome the plaintiff’s anti-SLAPP burden). This result raises two obvious problems:

* in ccBill, the Ninth Circuit said that Section 230 preempts publicity rights claims predicated on third party content. We can question the Ninth Circuit’s statutory analysis (and all courts outside the Ninth Circuit have reached the opposite conclusion), but ccBill has been applied to publicity rights claims by other Ninth Circuit-bound courts (including the quite similar Caraccioli case). This court doesn’t cite ccBill at all and simply says that publicity rights claims are IP claims, and those are excluded from Section 230.

* even if Section 230 doesn’t apply, how can the plaintiff establish a prima facie publicity rights case here? Facebook users posted negative content about the plaintiff and Facebook sells ads around the content. These kinds of “commercial editorial uses” often vex the courts, but I can’t imagine the court would have hesitated to grant the anti-SLAPP motion for a publicity rights claim if the defendant had been an ad-supported newspaper that ran a freelancer article about the plaintiff. To indulge in a law professor reductio ad absurdum, the “logic” of this court suggests that every time a Facebook user references any third party by name (or posts their photo, etc.) without that third party’s consent, that third party has a prima facie publicity rights claim against Facebook. Hello right to be forgotten!

Given that the doomsday outcome is (using Vizzini’s bad grammar) an inconceivable result, I’m 100% sure the case will eventually fail. I look forward to that.

More on the case from Paul Levy (whose blog post I recommend highly–he provides many important details about this case that I glossed over) and Mike Masnick.

One final note: the court punts on whether Facebook should get an anti-SLAPP attorneys fee shift because Facebook won on 3 claims and lost on the other 3 claims. I’m pretty sure Facebook should get part of its attorneys fees for the claims it won. See, e.g., Wong v. Jing. I wonder if the plaintiff will lose some enthusiasm for the lawsuit once he has to start writing checks to Facebook…?

Case citation: Cross v. Facebook, CIV 537384 (Cal. Superior Ct. May 31, 2016). The complaint.