Advertiser Can’t Force Facebook to Run Sex Product Ads–Strachan v. Facebook

December 14, 2023 · by · in Content Regulation, Derivative Liability, Licensing/Contracts, Marketing

Strachan created various Facebook pages and an advertising account. “In April 2020, Facebook cancelled Strachan’s advertising account and removed his advertising content from the platform.”

Allegedly, Facebook “determined he was selling ‘Adult Services and/or Products,’ i.e., ‘sex products.'” To make sure you don’t miss this point, Strachan is apparently arguing for the right to force Facebook to accept ads for sex products. Those ads are likely constitutionally protected, but you can easily articulate reasons why Facebook might nevertheless reasonably decide that sex product ads are unsuitable for Facebook’s audience. It’s that curatorial discretion that must-carry advocates are targeting for elimination…but to what end? More consumers exposed to sex product ads they may not want?

Strachan sued Facebook pro se for breach of contract and the good faith/fair dealing implied covenant. It’s an easy dismissal.

The court says Facebook can do whatever it wants. The “complaint pointed to no ’cause’ provision of the agreement either requiring Facebook to maintain a user’s account or restricting the company’s ability to remove content from the platform.” Instead, Facebook’s various documents indicated that Facebook could exercise its editorial discretion as it sees fit. Cites to Cross v. Facebook, Ebeid v. Facebook, and Murphy v. Twitter. The court summarizes:

the agreement gave Facebook discretion to disable a user’s account and to remove content—including advertising content—that violated the company’s Terms of Use. As in Murphy, the clear terms of the agreement preclude a claim for breach of contract based on the complaint’s allegations.

The court might have also said that Section 230 protects Facebook’s ad refusals. However, instead the court expressly declined to opine on Section 230. Thus, this is yet another example of a case where Section 230 reform would not change its outcome.

Add this case to the seemingly endless stack of failed lawsuits over account terminations and content removals.

Case citation: Strachan v. Facebook, Inc.,  2023 WL 8589937 (Cal. App. Ct. Dec. 12, 2023)