Section 230 Blocks Lawsuits That “Meddle” With Online Publishers’ Editorial Decisions–Shared v. Meta
The Ninth Circuit’s Section 230 jurisprudence has dev0lved into a drama-filled implosion, so it’s shocking (in a refreshing way) when the Ninth Circuit nowadays issues a normal, straight-down-the-middle Section 230 opinion without any caveats, tricks, or angst. I have a blogging backlog of many other Section 230 cases that I hope to cover before year-end, but I’m fast-tracking this one because of its novelty.
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This is an account termination/content removal case, so you already know the plaintiff is going to lose–the only question is how.
Shared allegedly “creates and publishes original, timely, and entertaining [online] content.” It ran Facebook pages that, at one point, had 25M followers. Shared heavily used Facebook’s self-service advertising, placing over 500,000 ads. Facebook rejected over 18,000 of those ads. The court says “Shared regularly relied on ‘scammy’ ads and ‘blatant clickbait.'” Here is an example of one of their rejected ads:
This ad showed Luke Wilson next to a serious car crash, baiting viewers to click on the ad to check whether he was OK. (He was). Facebook rejected this ad based on its policy against “shocking or sensational content,” including photos that “depict violence.” Shared was upset that it got canned explanations for its ad rejections, rather than personalized roadmaps to correct any problems.
Ultimately, Facebook pulled the plug on Shared’s operations in October 2020. The court summarizes Shared’s claims:
Shared sued Meta for, among other things, conversion and fraudulent inducement, claiming that Meta’s decision to “unpublish[] the Shared [Facebook] Pages” was a business “death sentence.” It based the conversion claim on Meta’s “unpublishing” the Shared Facebook Pages, over which Shared argued it had an exclusive property right.
If none of this makes sense to you, join the club. Conversion is a chattel-based concept, so what is it doing here? It brought to mind the Best Carpet Values v. Google case, where the plaintiff unsuccessfully claimed that web page framing was a trespass to the chattels of intangible web pages. What is it with plaintiffs importing offline chattels-based doctrines into the intangible web?
The lower court dismissed the case. My prior blog post.
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In a published opinion, the Ninth Circuit dismisses the conversion claim on Section 230 grounds. “Shared’s conversion claim seeks to impose liability on Meta for “unpublishing” Shared’s Facebook pages.” Labeling the claim as “conversion” was unusual but not creative or productive. The court responds flatly: “Section 230 bars the conversion claim.”
Shared only contested the publisher/speaker element, arguing that the conversion claim was somehow not that. The court easily rejects that:
Shared sued Meta because the latter exercised its publishing prerogative by removing third-party content—i.e., Shared’s Facebook pages. Such a decision to remove content and prevent someone from posting advertisements is a quintessential editorial decision protected under Section 230.
Shared tried to end-run this obvious conclusion by invoking the Calise/YOLO line of promise-based Section 230 exceptions:
Shared contends that its conversion claim effectively “seeks to hold Meta liable for failing to comply with its promise” not to remove Shared from Facebook “unless Shared ‘clearly, seriously, or repeatedly’ breached Facebook’s Terms or Policies,” which Shared claims it did not.
If you read Calise and YOLO literally, Section 230 should fall away once the plaintiff cites any promise made by the defendant. That did not happen here.
First, the court expresses skepticism about whether any promise was made because the TOS “gives Meta unilateral authority to determine whether a business has breached the Community Standards.” However, that’s not a 230 defense, that would be a failure of the prima facie elements. I’ll note that plaintiffs routinely mine a defendant’s site disclosures to identify and overstate alleged promises that are anything but.
Second,
Calise is of little help because Shared still seeks to meddle with Meta’s publishing discretion….a contractual promise that reiterates the company’s inherent publishing authority still amounts to publishing activity protected by Section 230. [Cite to King v. Facebook.] Indeed, it makes little sense to strip Meta of Section 230 liability defense simply because Facebook articulated its discretion as a publisher in its Terms of Service.
The court distinguishes Barnes: “Yahoo’s one-time promise to a specific user was beyond its typical publishing activity.” The court distinguishes Calise: “Facebook in Calise promised to curb advertisements that ‘defraud[] or exploit[]’ for ‘money or property.’ Such a contractual promise does not sound in editorial discretion but rather represents a business commitment to smoke out scammers.” Do those distinctions persuade you?
The court summarizes:
a claim does not automatically fall outside the ambit of Section 230’s liability protection just because it is framed as a breach of contract. Instead, a court must evaluate a claim to determine whether it seeks to treat an interactive computer service as a publisher or speaker of third-party information. That task may include assessing the core theory of the complaint and the nature of the alleged injurious conduct. In our case, Shared’s claim hinges on Meta’s publishing authority, despite being dressed up in contractual garb. Section 230 thus bars Shared’s claim.
In other words, Shared didn’t like having its account yanked, especially after all of the money it spent on Facebook ads, but it’s Facebook’s editorial prerogative to publish or not publish Shared’s content and ads. The net effect is straightforward: an account termination/content removal case fails even when a plaintiff tries the obtuse framing of conversion. No surprises there.
Yet, if you asked me to explain why Calise’s claim didn’t turn on Facebook’s editorial prerogative but Shared’s claim did, I couldn’t do it persuasively. Maybe one way to reconcile it is that Shared was publishing its own content on Facebook, while the plaintiffs in Barnes, Calise, and YOLO were suing based on someone else’s published content? That sure seems like a fine distinction, and the court didn’t make it clearly. I imagine the Ninth Circuit will have plenty more opportunities to plumb its purported distinctions. I personally think this decision casts more doubt on the wisdom of both Calise and YOLO.
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In a separate unpublished opinion, the court rejects Shared’s misrepresentation claim on statute of limitations grounds. “Shared received thousands of ad-rejection messages with allegedly inadequate explanations starting in 2016. But it did not sue until six years later.” But also, “even if Shared’s fraud claims were timely, Shared waived its fraud claims through its course of conduct over multiple years” because it kept placing orders despite receiving allegedly defective ad rejections.
Case Citation: The published opinion: Shared Partnership v. Meta Platforms, Inc., 2026 WL 3266791 (9th Cir. Oct. 30, 2026)
The unpublished opinion: Shared Partnership v. Meta Platforms, Inc., No. 25-2612 (9th Cir. Oct. 30, 2026)
Plaintiff’s lawyers were: Cook Alciati of Gardella Alciati, whose bio says he “specializes in intellectual property litigation with a particular emphasis on patent litigation,” and Seth Wiener of San Ramon.