Another Online Account Termination Case Fails–King v. Facebook
The plaintiffs are Adrienne Sepaniak King and Christopher Edward Sepaniak King, a mother-son duo. The family that sues together stays together. Facebook terminated the mom’s account allegedly for violating Facebook’s community standards. Attempts to resurrect it were unsuccessful. The lawsuit includes claims for breach of contract, violation of Section 230, IIED, NIED, breach of implied covenant of good faith and fair dealing, and conversion. This lawsuit gets tossed, but the mom gets a second chance for one claim.
Section 230. Adrienne sued Facebook for violating Section 230(c)(2)(A). The court responds: “there is no private right of action under the statute…the statute talks about the lack of liability. It provides a source of immunity beyond that provided under (c)(1).” Cites to Belknap v. Alphabet, Millan v. Facebook, and Atkinson v. Facebook.
Emotional Distress Claims. The court says Facebook has not engaged in “outrageous” conduct. All of the Kings’ arguments assume that Facebook broadcast the account termination, but the allegations don’t say that Facebook published the reason(s) for the termination (and for good reason). The negligence claims fail for lack of alleged duty.
Breach of Contract/Implied Covenant of Good Faith and Fair Dealing. The court addresses three different aspects.
1. Content Deletion. Facebook never promised to retain or not delete content from terminated accounts. Facebook’s acknowledgement that users retain their IP rights is inapposite.
2. Termination. The court points to this language in Facebook’s TOS: “If we determine that you have clearly, seriously or repeatedly breached our Terms or Policies, including in particular our Community Standards, we may suspend or permanently disable access to your account.” The court says this language could apply here, and it lacks a qualifier that Facebook can make its decisions in its sole discretion, so the court says Facebook’s decision-making “cannot be entirely arbitrary.” Thus, “there is a strong argument that the implied covenant of good faith and fair dealing imposes some limitation on the exercise of discretion so as to not entirely eviscerate users’ rights.” This is the same trap that the e-ventures v. Google court also fell into (remember–Google ultimately won that case).
Fortunately, the court escapes this trap with its Section 230 analysis.
The court says: “Facebook noted that it is not, at this juncture, making an argument of CDA immunity based on § 230(c)(2) because resolution of that issue would turn on disputed facts and thus the issue would not be the proper subject of a 12(b)(6) motion.” A safe harbor isn’t very useful if it’s not available on a motion to dismiss.
Even though the court said that the Kings may have a viable claim if Facebook exercises its termination power arbitrarily, the court says that Section 230(c)(1) can apply to breach of contract claims (echoing Atkinson v. Facebook and Murphy v. Twitter):
Although Ms. King’s position is not without any merit, she has glossed over the nature of the “promise” that Facebook made in its Terms of Service. In the Terms of Service, Facebook simply stated that it would use its discretion to determine whether an account should be disabled based on certain standards. The Court is not convinced that Facebook’s statement that it would exercise its publishing discretion constitutes a waiver of the CDA immunity based on publishing discretion. In other words, all that Facebook did here was to incorporate into the contract (the Terms of Service) its right to act as a publisher. This by itself is not enough to take Facebook outside of the protection the CDA gives to “‘paradigmatic editorial decisions not to publish particular content.’” Murphy, 60 Cal. App. 5th at 29. Unlike the very specific one-time promise made in Barnes, the promise relied upon here is indistinguishable from “‘paradigmatic editorial decisions not to publish particular content.’” Id. It makes little sense from the perspective of policy underpinning the CDA to strip Facebook of otherwise applicable CDA immunity simply because Facebook stated its discretion as a publisher in its Terms of Service.
Accordingly, the Court holds that Facebook has CDA immunity for the contract/implied covenant claim to the extent that claim is based on Facebook’s disabling of Ms. King’s account. Because there is CDA immunity, it would be futile for Ms. King to try to amend the claim.
This is a helpful explication of the intersection between Section 230 and breach of contract claims. Where the contract preserves the right of the defendant to exercise its editorial discretion, Section 230 backstops that contract term.
3. Explanation. The court points to this language: “Were we take such action [account suspension or termination] we’ll let you know and explain any options you have to request a review.” The complaint seemingly alleges that Facebook mechanically satisfied these requirements, but the court says maybe the implied covenant required Facebook to do more: “it is plausible that Facebook is obligated to provide at least some information in addition to the fact that the account has been suspended or terminated – e.g., enough information about why the account was suspended or terminated such that an ‘appeal’ could properly be made.” I don’t see how the court gets that implied promise; the express promise is simply to let the user know what options are available, including possibly no option. I think this court really made a stretch here.
Unlike the termination provision, the court says Section 230(c)(1) doesn’t apply to the explanation because “the implied promise is to explain its decision.”
Although saying the claim was viable, the court nevertheless dismisses the implied covenant claims because Adrienne didn’t allege any damages recognized by contract law. For example, she complains about losing access to her photos, but the court says she hasn’t alleged those photos have any economic value. Still, the court lets Adrienne amend the complaint to pursue the explanations claim.
Conversion. The complaint didn’t allege that Facebook’s content destruction was wrongful.
Challenge to Section 230. To preserve the argument for appeal, the plaintiffs argued that Section 230(c)(1) only applies to leave-up decisions and Section 230(c)(2)(A) governs removal decisions. They “acknowledge that binding Ninth Circuit authority holds that § 230(c)(1) covers both a decision to publish content or a decision to remove content,” but they are hoping the Ninth Circuit will be swayed by Justice Thomas’ blog post in the Malwarebytes case. Bonne chance with that.
A reminder that all of prior account termination/content removal cases have failed, as Jess Miers and I explained in detail in this article. This case has no chance of succeeding where 70+ prior cases have failed (including numerous cases involving implied covenant claims).
Still, Facebook might review the language the court highlighted and and clarify that it doesn’t intend to provide any substantive explanations. Then again, if Texas and Florida get their way, Facebook and the rest of the industry will be forced to provide explanations and we’ll all see lots more lawsuits over them.
Case citation: King v. Facebook, Inc., 2021 U.S. Dist. LEXIS 219277 (N.D. Cal Nov. 12, 2021)