Facebook’s Terms of Service protect it from liability for offensive fake account

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Someone set up a bogus Facebook account and posted, without consent, images and video of Plaintiff engaged in a lewd act. Facebook finally deleted the account, but not until two days had passed and Plaintiff had threatened legal action.

Plaintiff sued anyway, alleging, among other things, intrusion upon seclusion, public disclosure of private facts, and infliction of emotional distress. In his complaint, Plaintiff emphasized language from Facebook’s Terms of Service that prohibited users from posting content or taking any action that “infringes or violates someone else’s rights or otherwise would violate the law.”

Facebook moved to dismiss the claims, making two arguments: (1) that the claims contradicted Facebook’s Terms of Service, and (2) that the claims were barred by the Communications Decency Act at 47 U.S.C. 230. The court granted the motion to dismiss.

It looked to the following provision from Facebook’s Terms of Service:

Although we provide rules for user conduct, we do not control or direct users’ actions on Facebook and are not responsible for the content or information users transmit or share on Facebook. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook. We are not responsible for the conduct, whether online or offline, of any user of Facebook.

The court also examined the following language from the Terms of Service:

We try to keep Facebook up, bug-free, and safe, but you use it at your own risk. We are providing Facebook as is without any express or implied warranties including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. We do not guarantee that Facebook will always be safe, secure or error-free or that Facebook will always function without disruptions, delays or imperfections. Facebook is not responsible for the actions, content, information, or data of third parties, and you release us, our directors, officers, employees, and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claims you have against any such third parties.

The court found that by looking to the Terms of Service to support his claims against Facebook, Plaintiff could not likewise disavow those portions of the Terms of Service which did not support his case. Because the Terms of Service said, among other things, that Facebook was not responsible for the content of what its users post, and that the a user uses the service as his or her on risk, the court could not place the responsibility onto Facebook for the offensive content.

Moreover, the court held that the Communications Decency Act shielded Facebook from liability. The CDA immunizes providers of interactive computer services against liability arising from content created by third parties. The court found that Facebook was an interactive computer service as contemplated under the CDA, the information for which Plaintiff sought to hold Facebook liable was information provided by another information content provider, and the complaint sought to hold Facebook as the publisher or speaker of that information.

Caraccioli v. Facebook, 2016 WL 859863 (N.D. Cal., March 7, 2016)

About the Author: Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

Communications Decency Act shields Backpage from liability for violation of federal sex trafficking law

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Three Jane Doe plaintiffs, who alleged they were victims of sex trafficking, filed suit against online classified ad provider Backpage.com (“Backpage”), asserting that Backpage violated the federal Trafficking Victims Protection Reauthorization Act (“TVPRA”) by structuring its website to facilitate sex trafficking and implementing rules and processes designed to actually encourage sex trafficking.

The district court dismissed the TVPRA claims for failure to state a claim, holding that the Communications Decency Act, at 47 U.S.C. §230, provided immunity from the claims. Plaintiffs sought review with the First Circuit. On appeal, the court affirmed the lower court’s dismissal.

Section 230 principally shields website operators from being “treated as the publisher or speaker” of material posted by users of the site. In this case, the court held that plaintiffs’ claims were barred because the TVPRA claims “necessarily require[d] that the defendant be treated as the publisher or speaker of content provide by another.” Since the plaintiffs were trafficked by means of the third party advertisements on Backpage, there was no harm to them but for the content of the postings.

The court rejected plaintiffs’ attempts to characterize Backpage’s actions as “an affirmative course of conduct” distinct from the exercise of the “traditional publishing or editorial functions” of a website owner. The choice of what words or phrases to be displayed on the site, the decision not to reduce misinformation by changing its policies, and the decisions in structuring its website and posting requirements, in the court’s view, were traditional publisher functions entitled to Section 230 protection.

Does v. Backpage.com, LLC, No. 15-1724 (1st Cir., March 14, 2016)

Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

See also:
Seventh Circuit sides with Backpage in free speech suit against sheriff

Amazon and other booksellers off the hook for sale of Obama drug use book

Section 230 of the Communications Decency Act shields Amazon, Barnes & Noble and Books-A-Million from some, but not all claims brought over promotion and sale of scandalous book about presidential candidate.

Parisi v. Sinclair, — F.Supp.2d —, 2011 WL 1206193 (D.D.C. March 31, 2011)

In 2008, Larry Sinclair made the ultra-scandalous claim that he had done drugs and engaged in sexual activity with then-presidential candidate Barack Obama. Daniel Parisi, owner of the infamous Whitehouse.com website, challenged Sinclair to take a polygraph test.

Not satisfied with the attention his outlandish claims had garnered, Sinclair self-published a book detailing his alleged misadventures. The book was available through print-on-demand provider Lightening Source.

Amazon, Barnes & Noble, and Books-A-Million (“BAM”) each offered Sinclair’s book for sale through their respective websites. (Barnes & Noble and BAM did not sell the book at their brick and mortar stores.) Each company’s website promoted the book using the following sentence:

You’ll read how the Obama campaign used internet porn king Dan Parisi and Ph.D. fraud Edward I. Gelb to conduct a rigged polygraph exam in an attempt to make the Sinclair story go away.

Parisi and his Whitehouse Network sued for, among other things, defamation and false light invasion of privacy. BAM moved to dismiss pursuant to Rule 12(b)(6) while Amazon and Barnes & Noble moved for summary judgment. The court granted the booksellers’ motions.

Section 230 applied because booksellers were not information content providers

The booksellers’ primary argument was that Section 230 of the Communications Decency Act shielded them from liability for plaintiffs’ claims concerning the promotional sentence. The court found in defendants’ favor on this point.

Section 230 provides in relevant part that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The major issue in this case was whether the online booksellers had provided the information comprising the promotional sentence. The court found that the pleadings (as to BAM) and the evidence (as to Amazon and Barnes & Noble) did not credibly dispute that the booksellers did not create and develop the promotional sentence.

But not so fast, Section 230, on some of those other claims!

The court’s treatment of Section 230 in relation to plaintiffs’ false light claim and the claims relating to the actual sale of the book were even more intriguing.

Plaintiffs argued that their false light claim was essentially a right of publicity claim. And Section 230(e)(2) says that immunity does not apply to claims pertaining to intellectual property. There is some confusion as to whether this exception to immunity applies only to federal intellectual property claims or to both federal and state IP claims. On one hand, Perfect 10, Inc. v. CCBill says that only federal intellectual property claims are excepted from immunity (which would mean that state law IP claims would be barred by Section 230). On the other hand, cases like Atlantic Recording Corp. v. Project Playlist, Doe v. Friendfinder Network and Universal Communication System v. Lycos suggest that both state and federal IP claims should withstand a Section 230 challenge.

In this case, the court indicated that it would have sided with the cases that provide for both federal and state claims making it past Section 230: “I am not inclined to extend the scope of the CDA immunity as far as the Ninth Circuit. . . . ”

But ultimately the court did not need to take sides as to the scope of Section 230(e)(2), as it found the use of plaintiff Parisi’s name fit into the newsworthiness privilege. One cannot successfully assert a misappropriation claim when his name or likeness is used in a newsworthy publication unless the use has “no real relationship” to the subject matter of the publication.

The court also seemed to constrain Section 230 immunity as it related to the online booksellers’ liability for selling the actual book. (Remember, the discussion above, in which the court found immunity to apply, dealt with the promotional sentence.) The court rejected defendants’ arguments that the reasoning of Gentry v. eBay should protect them. In Gentry, eBay was afforded immunity from violation of a warranty statute. But it merely provided the forum for the sale of goods, unlike the online booksellers in this case, which were the distributors of the actual allegedly defamatory book.

Even though Section 230 did not serve to protect BAM, Barnes & Noble and Amazon from liability for defamation arising from sales of the book, the court dismissed the defamation claim because of the lack of a showing that the booksellers acted with actual malice. It was undisputed that the plaintiffs were limited-purpose public figures. Persons with that status must show that the defendant acted with actual malice. That standard was not met here.

Yahoo not liable for blocking marketing email

Section 230 of Communications Decency Act (47 U.S.C. 230) shields Yahoo’s spam filtering efforts

Holomaxx v. Yahoo, 2011 WL 865794 (N.D.Cal. March 11, 2011)

Plaintiff provides email marketing services for its clients. It sends out millions of emails a day, many of those to recipients having Yahoo email addresses. Yahoo used its spam filtering technology to block many of the messages plaintiff was trying to send to Yahoo account users. So plaintiff sued Yahoo, alleging various causes of action such as intentional interference with prospective business advantage.

Yahoo moved to dismiss, arguing, among other things, that it was immune from liability under Section 230(c)(2) of the Communications Decency Act. The court granted the motion to dismiss.

Section 230(c)(2) provides, in relevant part, that “[n]o provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Plaintiff argued that immunity should not apply here because Yahoo acted in bad faith by using “faulty filtering technology and techniques,” motivated “by profit derived from blocking both good and bad e-mails.” But the court found no factual basis to support plaintiff’s allegations that Yahoo used “cheap and ineffective technologies to avoid the expense of appropriately tracking and eliminating only spam email.”

The court rejected another of plaintiff’s arguments against applying Section 230, namely, that Yahoo should not be afforded blanket immunity for blocking legitimate business emails. Looking to the cases of Goddard v. Google and National Numismatic Certification v. eBay, plaintiff argued that the court should apply the canon of statutory construction known as ejusdem generis to find that legitimate business email should not be treated the same as the more nefarious types of content enumerated in Section 230(c)(2). (Content that is, for example, obscene, lewd, lascivious, filthy, excessively violent, harassing).

On this point the court looked to the sheer volume of the purported spam to conclude Yahoo was within Section 230’s protection to block the messages — plaintiff acknowledged that it sent approximately six million emails per day through Yahoo’s servers and that at least .1% of those emails either were sent to invalid addresses or resulted in user opt-out. On an annual basis, that amounted to more than two million invalid or unwanted emails.

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