Section 230 Protects Facebook’s Account and Content Restriction Decisions–Ebeid v. Facebook
Courts, at least in the Ninth Circuit, have collapsed the distinction between Sections 230(c)(1) and 230(c)(2). As a result, (c)(1) now routinely protects a service’s content filtering and account restriction decisions, which is nominally the job of (c)(2). This is ultimately good news, or at least not bad news, because (c)(1) bypasses (c)(2)’s problematic “good faith” requirement. Still, if you’re confused about why (c)(1) is being used to cover exactly the factual circumstances contemplated by (c)(2), you probably aren’t alone. (And this development has undermined my paper on 230(c)(2) and online account terminations from 2011).
This case involves Sadek Raouf Ebeid’s Facebook pages that he used for advocacy purposes. He alleges that Facebook suppressed the visibility of those pages and his ability to post to them, including removing posts, restricting account login, and not boosting the pages when promoted. He claims that he appealed Facebook’s decisions, which they sometimes reversed. Typical of complaints of this nature, Ebeid alleged a panoply of legal violations: (i) the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq. (“Title II”); (ii) the First Amendment of the U.S. Constitution; (iii) California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. (the “UCRA” or “Unruh Act”); (iv) fraud/intentional misrepresentation; (v) breach of contract; (vi) breach of the implied covenant of good faith and fair dealing; and (vii) California’s Unlawful Business Practices Act, Cal. Bus. & Prof. Code § 17200 et seq. (the “UCL”).
Section 230. Facebook defended on Section 230(c)(1):
ICS Provider. Everyone agrees Facebook qualifies.
Information Provided by Another Content Provider. Ebeid argued that (c)(1) applies only to third-party content, not his content. The court says this “argument has been repeatedly rejected,” citing Sikhs for Justice and Lancaster.
Publisher Treatment. “defendant’s decision to remove plaintiff’s posts undoubtedly falls under ‘publisher’ conduct. The same is true for Facebook’s on-and-off again restriction of plaintiff’s use of and ability to post on the Facebook platform.” This is true even with respect to discrimination claims, which Section 230 applies to (cite to Sikhs for Justice for Title II, cite to Harvard for Unruh Act).
Thus, the court dismisses with prejudice the Title II, Unruh Act, and associated UCL claims based on Section 230.
More on Title II. The court says the Title II discrimination claim failed on other grounds, including that Facebook isn’t a place of public accommodation (citing the old Noah v. AOL case): “Though plaintiff points to the physical location of Facebook’s servers, plaintiff’s use of and the service provided by Facebook’s online platform ‘is unconnected to entry into a public place or facility.'”
More on Unruh Act Claim. The plaintiff alleged that Facebook’s decisions were “arbitrary,” which is inconsistent with an allegation that Facebook intended to discriminate.
First Amendment Claim. Facebook isn’t a state actor because it doesn’t perform one of the functions exclusively performed by governments. Cite to Prager U.
Contract/Fraud. The court says there wasn’t a proper allegation of the contract terms, that Facebook breached, or that the plaintiff suffered damages. The plaintiff gets another chance to plead these.
I still teach the Noah v. AOL case from 2003 in part because it covered virtually all of the claims raised in this case. It’s dispiriting that we’re seeing the same ole stuff 16 years later.