The Plaintiff Is Probably Pissed About Section 230–Fyk v. Facebook

[I’ll blog an analysis of Sen. Hawley’s bill attacking Section 230 soon.]

Jason Fyk created Facebook pages “dedicated to videos and pictures of people urinating….Plaintiff alleges that Facebook blocked content posted by Plaintiff and removed content in order to make room for its own sponsored advertisements. Plaintiff contends these actions by Facebook destroyed or severely devalued his pages.” (This article gives some background on Fyk’s story). Fyk sued for for intentional interference with prospective economic advantage, violation of California Business and Professions Code section 17200, civil extortion, and fraud, and he announced this lawsuit on Fox and Friends (#MALGA).

This is an easy Section 230 dismissal. Yet again, the court relies on 230(c)(1) for facts fitting the 230(c)(2) paradigm.

ICS Provider. “the complaint itself alleges that Facebook provides an internet-based platform where millions of users can access third party content, including the content uploaded on Plaintiff’s pages.”

Third-Party Content. The plaintiff claimed his content didn’t qualify as third-party content. Citing Sikhs for Justice, the court says: “there is no dispute that Plaintiff was the sole creator of his own content which he had placed on Facebook’s pages. As a result, those pages created entirely by Plaintiff, qualifies as ‘information provided by another information content provider’ within the meaning of Section 230.”

Publisher/Speaker Claims. “The three causes of action alleged in the complaint arise out of Facebook’s decision to refuse to publish or to moderate the publication of Plaintiff’s content.”

I wonder if Fox and Friends will run an update on this case and its lack of merit?

I’ve lost count how many rulings I’ve blogged this year involving social media providers removing/blocking/downgrading user content. This is my third such post in the last 9 days (see also Murphy v. Twitter and Brittain v. Twitter). The lawsuits and court rulings are basically all the same. Primarily due to the courts’ expanded interpretation to Section 230(c)(1), courts are quickly flushing these “must carry”-style lawsuits down the toilet.

For years, we’ve heard Internet critics lament the success of online cyber-cesspools. Here, Facebook chose to be a little less cesspool-y–literally. That sounds like a good thing to me, and something we should encourage–and we’ve already encouraged through the voluntary self-policing protections in Section 230. Still, if Hawley’s bill succeeds, Fyk or anyone else can cite Facebook’s crackdown as evidence of bias against pro-scatological political parties. I don’t personally know of any political parties with such a platform, but they probably already exist or will eventually form, and Hawley’s bill would require that Facebook treat such parties equally to the Republican party. Also recall Fyk’s announcement of this lawsuit on Fox and Friends and the #MAGA community’s interest in lawsuits like this, adding a second political dimension to this lawsuit. As a result, Hawley’s bill seemingly creates a fast-track towards increasing your “enjoyment” of more shitty videos on Facebook.

Case citation: Fyk v. Facebook, Inc., No. C 18-05159 JSW (N.D. Cal. June 18, 2019). The complaint (with 4 plaintiffs’ lawyers in the caption, befitting the dollars at stake in this case). Fyk’s website about the lawsuit, where you can also buy his book or donate to the “cause.”