Instagram Influencer Denied Section 230 For Reposting Reader Submissions–Zuckerbrot v. Gellis

This case involves the high-fiber diet system “F-Factor,” developed by dietitian Tanya Zuckerbrot. Emily Gellis is an Instagram influencer currently with 182k followers, but no training as a dietitian or journalist. Gellis believed that F-Factor harmed consumers, a message she delivered in 4,500 posts over 75 days. Some of Gellis’ posts republished material submitted by readers, such as first-hand testimonials about the problems they allegedly experienced with the F-Factor diet (allegedly, the submitting readers preferred anonymity). Zuckerbrot sued Gellis for defamation and related claims. A second defamation lawsuit was filed this month. A 2020 New York Times story examined the women’s feud in depth; and this Daily Beast story goes even deeper.

I’m going to focus solely on the Section 230 aspect of the court’s partial denial of Gellis’ motion to dismiss the first lawsuit. Gellis claimed Section 230 immunized her from liability for “the content of messages posted on her Instagram account by third parties.” The court disagrees:

The CDA does not shield Gellis here. Gellis is being sued as a “content provider,” not a “service provider.” She was not a passive conduit for the messages of third parties. All of the statements at issue were allegedly posted on Gellis’s Instagram page by Gellis herself. This is important to underscore. Gellis insists she cannot be held liable “for the content of messages posted on her Instagram account by third parties,” but the Complaint does not allege that any third parties posted on Gellis’s Instagram account. Rather, Gellis allegedly curated what messages she reposted, added commentary, and included the reposted messages as part of her own ongoing discussion of F-Factor and Zuckerbrot.

Regular readers can easily spot two obvious mistakes by the court. First, Section 230 isn’t limited to defendants who act as a “passive conduit” for third-party content. As I’ve explained many times over, Section 230 by design applies when defendants exercise editorial discretion over third-party material; the whole point is to encourage entities to do more content moderation. Section 230 was never needed for the “passive conduit” scenario because Cubby v. CompuServe had already provided protection in that circumstance.

Second, Section 230 absolutely applies when the defendant mediates third-party content rather than letting users self-publish their content directly. I don’t have the energy to aggregate all of the cases (for example, all of The Dirty’s 230 rulings fit this model), but the leading case on this point–the uncited Batzel ruling–said that Section 230 applied when the defendants chose to republish third-party content submitted to it, so long as the submissions were not meant solely for private consumption. Given the nature of the third-party material that Gellis republished, there’s no doubt that the submitters intended their remarks to be shared publicly, so this seems like an obvious Section 230 scenario per Batzel.

The court briefly cites, but appears to misapply, a highly relevant 2011 New York Court of Appeals ruling (the highest court in New York), Shiamili v. The Real Estate Group. In that ruling, the court said that the “defendants did not become ‘content providers’ by virtue of moving one of the comments to its own post. Reposting content created and initially posted by a third party is well within ‘a publisher’s traditional editorial functions.'” It’s true that in the Shiamili case the readers did not originally publish their comments, but the Court of Appeals’ key concern was the defendant’s reposting of the comments, which it said remained covered by Section 230. At minimum, this court should have explained more why the Shiamili case depended on who made the initial posting, rather than the more obvious implication that reposting third-party content was protected no matter who published it first. I wouldn’t be surprised if the intermediate appellate court felt the lower court misinterpreted the Shiamili precedent. (Given the apparent blood feud between these two women, every ruling is likely to be appealed).

So, while the court is correct that Section 230 doesn’t protect Gellis for any comments she added to the readers’ submissions (again, see The Dirty’s litigation), I think the court got it wrong about Section 230’s application to the third-party components of those posts.

Case citation: Zuckerbrot v. Lande, 2022 NY Slip Op 22072 (N.Y. Supreme Ct. March 17, 2022). The complaint.

An October 2022 NYT update on this fracas.