Facebook Defeats Lawsuit Over Its Failure to Explain an Account Termination–King v. Facebook

This is another one of the many unsuccessful lawsuits over online account terminations. The court previously rejected most of this lawsuit on a mix of Section 230 grounds and the prima facie elements, but permitted the plaintiff to try again on the claim that Facebook breached the implied covenant of good faith and fair dealing by not providing an explanation for the account termination. Given a second chance, the plaintiff still didn’t get there. The court points to three problems:

Causation. The plaintiff’s alleged harm is the loss of a decade of photos, but the lack of an explanation didn’t cause that harm (the termination did).

Special Damages. “nothing suggests Facebook should have known that she would not maintain her photos elsewhere (whether as hard copies or digital copies saved onto a hard drive, on a phone, flash drive, or in the cloud), especially given that the photos were of great personal value to her (so much so that she planned on compiling them into a memoir of her life).” Protip: Facebook is a terrible cloud storage option. Also, Facebook’s TOS waives special damages.

Peculiar Value. The “value of the photos is personal in nature,” not economic. Plus, “Facebook cannot be said to have been a willful wrongdoer when the contract did not require it to preserve any content of its users.”

While the court dismisses the case, it was arguably on grounds specific to this plaintiff. The bigger headline is that a judge thought that a failure to explain the termination might have qualified as a breach of the implied covenant of good faith and fair dealing. The best way to negate that risk is to expressly disavow any explanatory obligations in the TOS–to the extent the law doesn’t mandate explanations, which the currently-enjoined Florida and Texas censorship laws do. Another way to reduce the risk is to actually provide explanations, but watch out because they are a liability trap of their own.

No doubt this case is headed to the Ninth Circuit.

For a comprehensive roundup of account termination cases, see this article from last year.

Case citation: King v. Facebook, Inc., 2022 U.S. Dist. LEXIS 72533 (N.D. Cal. April 20, 2022)