Section 230 Preempts Contract Breach Claims–Morton v. Twitter
This case involves the model Genevieve Morton. She created nude images and sold them at her website. An interloper, SpyIRL, tweeted some of the images. Morton asked Twitter to remove the images and suspend the accounts. Twitter removed the images but didn’t immediately remove the associated tweets or suspend the accounts. Morton sued SpyIRL and Twitter for the following claims: copyright, FOSTA, publicity rights, Lanham Act false advertising, privacy invasion, defamation, “contractual fraud,” NIED/IIED, and unjust enrichment. When the complaint was first filed, I noted the oddity of the FOSTA civil claim, which looked ill-fitting. Twitter filed a motion to dismiss all of the claims other than the copyright claim. The court grants Twitter’s motion based on Section 230.
ICS Provider. We get an unusually extended discussion of the ICS provider prong:
Twitter is clearly an interactive computer service provider. As an online microblogging and social media platform, it allows its users to post messages on the platform for the public to see. Every decision the Court has seen to consider the issue has treated Twitter as an interactive computer service provider, even at the motion to dismiss stage….The fact that Twitter ‘generates revenue as an advertising agency and a data broker’ does not change the fact that Twitter ‘provides or enables computer access by multiple users to a computer service.’…Morton suggests that Section 230 no longer applies to Twitter because Twitter now “operates its own Content Delivery Network.” But that fact is irrelevant. The exact mechanism by which Twitter delivers content to its users does not change the fact that Twitter is a social media platform and provides the “prototypical service entitling it to protections of [Section 230].”
So long as Twitter performs the ICS functions, the fact it might perform other functions is irrelevant. That isn’t rocket science.
Publisher/Speaker of Third-Party Content. (The court seems to collapse the two factors into one). “The objectionable content at issue here are tweets posted by SpyIRL. While the tweets are posted on Twitter’s platform, it is clear that it was SpyIRL – not Twitter – that chose to post the offending tweets containing photographs of Morton.” Morton made the bare allegation that Twitter and SpyIRL were the same entity (or close enough), but the court says it’s “common sense” that Twitter isn’t.
The court then cites numerous cases rejecting the specific claims Morton made, including J.B. v. G6 (FOSTA); Ripple v. YouTube (publicity rights/UCL); 924 Bel Air Rd. v. Zillow (false light); Herrick v. Grindr (emotional distress claims); and Parker v. PayPal (unjust enrichment). When the court puts it that way, it’s pretty clear that this case was never really close.
The court says: “The only claim for which the Court has not seen a prior ruling find barred by Section 230 is Morton’s false advertising claim based upon the Lanham Act.” That’s an odd statement because the Ninth Circuit expressly addressed this issue in Enigma v. Malwarebytes. There, the 9th Circuit said that Section 230’s IP “exception does not apply to false advertising claims brought under § 1125(a) of the Lanham Act, unless the claim itself involves intellectual property.” The Enigma case involved 230(c)(2)(B), not 230(c)(1), but no big diff because the exclusion applies equally to both provisions. If for some reason the Enigma case wasn’t close enough, there are other 230(c)(1) cases on point too, including Marshall’s Locksmith v. Google. Despite the court’s perceived lack of precedent, “the Court dismisses [the Lanham Act false advertising] claim as well because Section 230 clearly reaches the allegedly false advertising statements here, i.e., SpyIRL’s tweets.”
Regarding the “contractual fraud” claim, Morton sought to weaponize Twitter’s non-consensual nudity policy (which says Twitter will immediately and permanently suspend accounts for violations), on the theory that Twitter promised to enforce it and didn’t. Yes, it’s 2021, and we’re seeing the exact same arguments that failed in cases like Noah v. AOL from 2004. Unsurprisingly, they fail again.
First, Twitter never promised to suspend offending accounts. Instead, it contractually reserved its discretion. Cite to Caraccioli v. Facebook. That makes Twitter’s policy “merely aspirational statements.”
Second, “a breach of contract claim premised solely on Twitter’s failure to suspend those accounts would be barred by Section 230. This is because the actions that Morton alleges Twitter failed to take – thereby breaching its duty – are suspending a user’s account. ‘But removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.’” Cite to Barnes v. Yahoo. The court distinguishes Barnes’ handling of promissory estoppel and 230, saying “liability for promissory estoppel is not necessarily for behavior that is identical to publishing or speaking (e.g., publishing defamatory material in the form of SpyIRL’s tweets or failing to remove those tweets and suspend the account).” I didn’t fully understand the nuanced point the court was trying to make here.
Still, I’m going to bold this language again because it’s central to many cases nowadays: “a breach of contract claim premised solely on Twitter’s failure to suspend those accounts would be barred by Section 230.” Yes, Section 230(c)(1) can support a motion to dismiss contract breach claims. That’s why the contract/230 discussion in Daniels v. Alphabet was weird.
Note that Twitter’s alleged failure to comply with its announced policy is exactly the kind of thing that the PACT Act and many other bills are targeting for greater enforcement activity. This ruling previews the kind of litigation activity that some legislators hope to see more of.
The plaintiffs will get a chance to file an amended complaint (but they haven’t done so, at least not yet), and the copyright claim weren’t challenged and remain unresolved.
Case citation: Morton v. Twitter, Inc., 2021 WL 1181753 (C.D. Cal. Feb. 19, 2021). I’m not sure why the online databases took several weeks to index the case. The complaint. This lawsuit has its own microsite, but it hasn’t been maintained.