Three recent court decisions reaffirm the expansive immunity awarded to online providers that host third-party content under Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c): California’s Superior Court decision in Murphy v. Twitter, Inc., No. CGC-19-573712 (Cal. Super. June 12, 2019), and the Northern District of California’s decisions Brittain v. Twitter, Inc., No. 19-00114 (N.D. Cal. June 10, 2019), and Fyk v. Facebook, Inc., No. 18-05159 (N.D. Cal. June 18, 2019).
In Murphy, the plaintiff was a self-described “feminist writer and journalist” residing in Canada. After repeatedly referring to a transgendered female as a male in her tweets, Twitter suspended her account for intentional “misgendering,” which is a violation of Twitter’s Hateful Conduct Policy. Following a series of exchanges, Twitter permanently banned Murphy. Murphy then sued Twitter in a putative class action for breach of contract, false advertising and violating unfair competition laws. Murphy requested injunctive relief prohibiting Twitter from, among other things, suspending users for violating its “misgendering” rule. Murphy claimed that in banning her, Twitter failed to provide her with adequate notice of their Hateful Conduct Policy change and engaged in “viewpoint discrimination.” Twitter responded with an anti-SLAPP motion to strike (which is procedurally important but beyond the scope of this blog post) and a demurrer to dismiss the complaint based on the CDA.
Generally, for a provider to receive immunity under the CDA, three conditions must be met: (1) the provider is a “provider or user of an interactive computer service;” (2) the information which the plaintiff seeks to hold the provider liable is “information provided by another information content provider;” and 3) the plaintiff’s claim seeks to hold the provider liable as the “publisher or speaker” of that information. In Murphy, the court granted the demurrer, reasoning that Twitter satisfied these three conditions. Central to the court’s decision was the fact that Murphy sought to impose liability on Twitter in its capacity as a publisher when it suspended or banned accounts. Citing the California Supreme Court’s Barrett case as controlling precedent, the court stated that the CDA “forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.” The court rejected the plaintiff’s attempt to circumvent the CDA by alleging that she was merely seeking to hold Twitter liable for marketing statements or quasi-contractual promises, holding that plaintiff’s claims were based on her own content and sought to compel Twitter to restore her account and refrain from enforcing its content policy against her, claims barred by the CDA.
Twitter is no stranger to staying on the right side of §230(c) immunity−it prevailed in a similar lawsuit in early June. In Brittain, an individual plaintiff brought an action against Twitter for terminating four accounts (and losing followers) and allegedly suppressing right-wing viewpoints. The plaintiff alleged eight causes of action against Twitter for the account terminations: a violation of the First amendment, a violation of federal election and antitrust law, breach of contract, conversion, and various other state law claims. Twitter moved to dismiss on multiple grounds, including that section 230(c)(1) of the CDA renders it immune from liability for each of Brittain’s claims that seek to treat it as a publisher of third-party content. The court found that each of Brittain’s claims against Twitter, except for his antitrust violation claim, attempted to treat Twitter as a publisher in their actions to terminate the accounts.
Regarding the antitrust violation claim, the court found that the plaintiff Brittain lacked standing because he failed to show the type of injury the antitrust laws were intended to prevent. Additionally the court found that at most Brittain’s allegations support a contention that Twitter and others in the market have engaged in conscious parallelism, which it ruled was not actionable by law. While this case is a win for Twitter, ultimately, the court afforded the plaintiff leave to amend his antitrust claim.
Twitter is not the only online provider to enjoy immunity under 230(c) this month. In a similar lawsuit, Facebook received immunity against claims related to blocking third-party content on its platform, further illustrating the breadth of protection 230(c) provides.
In Fyk, the plaintiff filed suit alleging various tort and state law claims after Facebook blocked the plaintiff’s content which included photos and videos of people urinating. Facebook moved to dismiss on two bases, principally, on CDA grounds. Ruling in a relatively straightforward application of CDA immunity, the court held that because the CDA bars all claims that seek to hold an interactive computer service liable as a publisher of third party content, the CDA precluded all of the plaintiff’s claims (“[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230”). Unlike in Brittain, the plaintiff in Fyk was not allowed to amend any parts of his complaint.
The steady drumbeat of CDA cases continues to emphasize the breadth of actions considered to be “publisher” activity under the CDA. They also highlight the failure of arguments structured to operate as CDA “work-arounds,” that is, arguments structured to bypass the immunities of the CDA by characterizing actions by providers in a manner that falls outside the protected activities of the CDA.