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

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.

Facebook wins against alleged advertising fraudster

Defendant set up more than 70 bogus Facebook accounts and impersonated online advertising companies (including by sending Facebook falsified bank records) to obtain an advertising credit line from Facebook. He ran more than $340,000 worth of ads for which he never paid. Facebook sued, among other things, for breach of contract, fraud, and violation of the Computer Fraud and Abuse Act (CFAA). Despite the court giving defendant several opportunities to be heard, defendant failed to answer the claims and the court entered a default.

The court found that Facebook had successfully pled a CFAA claim. After Facebook implemented technological measures to block defendant’s access, and after it sent him two cease-and-desist letters, defendant continued to intentionally access Facebook’s “computers and servers to obtain account credentials, Facebook credit lines, Facebook ads, and other information.” The court entered an injunction against defendant accessing or using any Facebook website or service in the future, and set the matter over for Facebook to prove up its $340,000 in damages. It also notified the U.S. Attorney’s Office.

Facebook, Inc. v. Grunin, 2015 WL 124781 (N.D. Cal. January 8, 2015)

Co-founder liable for sending company’s social media followers to new competing company’s Facebook page

2261434057_87ddea278a_zThe owners of an LLC successfully published a magazine for several years, but the business declined and the company eventually filed bankruptcy. While the bankruptcy proceedings were still underway, one of the owners started up a new magazine publishing the same subject matter. He essentially took over the old company’s website to promote the new magazine. And he posted to the LLC’s Facebook page on three separate occasions, “reminding” those who liked the page to instead like his new company’s Facebook page.

The bankruptcy trustee began an adversary proceeding against the owner asserting, among other things, breach of fiduciary duty, unfair trade practices, and copyright infringement. The bankruptcy court held a trial on these claims and found the owner liable.

On the breach of fiduciary duty claim, the court equated the “reminding” of Facebook users to visit and like the new company’s Facebook page was equivalent to using the company’s confidential information. Similarly, as for the unfair trade practices claim (under the Louisiana Unfair Trade Practices Act), the court found that social media is “an important marketing tool,” and held that “taking away followers of [the old company] and diverting them to [the Facebook page of the new company]” was an unfair trade practice.

On the copyright infringement claim, the court found that the images and articles on the website belonged to the old company under the work made for hire doctrine and that the owner had not obtained consent nor paid compensation for their use in connection with the new enterprise.

In re Thundervision, L.L.C., 2014 WL 468224 (Bkrtcy.E.D.La. February 5, 2014)

Photo credit: Flickr user 1lenore under this Creative Commons license.

Judge who sent Facebook friend request to wife in pending divorce proceeding should have been disqualified

facebook-friend-request-446x298While a divorce case was pending, the judge overseeing the case sent the wife a Facebook friend request. The wife did not accept the request. Thereafter, the judge entered a final judgment that was more favorable to the husband. After the wife found out about other cases in which the judge had reached out to litigants through social media, she filed a motion to disqualify the judge. The judge refused to disqualify herself.

The wife sought review with the appellate court. On appeal, the court reversed and remanded, holding that the judge should have disqualified herself:

The “friend” request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the “friend” request.

Moreover, the court found the problem of friending a party in a pending case “of far more concern” than a judge’s Facebook friendship with a lawyer. Forbidding judges and counsel to be Facebook friends, especially in smaller counties with tight-knit legal communities, would be unworkable. But with a friend request from the judge, a party has a “well founded fear” of not receiving a fair and impartial trial.

Chace v. Loisel, — So.3d —, 2014 WL 258620 (Fla.App. 5 Dist. January 24, 2014)

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