[It’s impossible to blog about Section 230 without reminding you that Congress is on the cusp of gutting it.]
The principal plaintiff, performer Mikel Knight, was the subject of critical Facebook posts related to two fatal accidents by his tour buses. Knight demanded Facebook remove the posts. Facebook refused. Knight sued. Facebook brought an anti-SLAPP motion predicated on Section 230. Sounds like an easy win for Facebook…right?
Yes, except somehow the trial court fouled this up. The court granted the Section 230-based anti-SLAPP motion for some of the claims but not for the publicity rights-related claims–despite the fact that Facebook merely ran ads on third party content, and without any reference to the ccBill case saying Section 230 preempted publicity rights claims in the Ninth Circuit (or the Caraccioli v. Facebook case, confirming that result). The trial court’s ruling prompted my first meltdown of 2016 about the state of Section 230 jurisprudence, when I asked “WTF Is Going On With Section 230?”
Fortunately, the appellate court fixes this mess. The court concludes that all of the claims against Facebook are covered by California’s anti-SLAPP law. While the court expressly sidesteps Section 230’s applicability to publicity rights claims, this is still a satisfying denouement to a bad ruling.
The opinion starts by considering if the case involved an issue of public interest. The posts “involved the danger of trucks on highways driven by sleep-deprived drivers,” which is clearly a matter of public interest. To get around this, the plaintiffs tried an unusual and tricky argument: they said they were suing over Facebook’s privately communicated promises to remove the content, and that communication wasn’t a matter of public interest. The court says this argument was belied by the plaintiffs’ filings, which focused on the Facebook pages’ content. I would add that an Internet giant’s decision to remove user content could be a matter of public interest based on the censorious implications, but the court didn’t need to go that far. The “commercial speech” exception to the anti-SLAPP law also did not apply.
Turning to the plaintiffs’ showing of a likelihood of prevailing on the merits, the court has little trouble concluding that Section 230 preempts the breach of contract, negligent misrepresentation, and negligent interference claims. The plaintiffs once again tried to argue that they were suing based on Facebook’s removal promises (including, apparently, the negative behavioral covenants in its Statement of Rights and Responsibilities), and once again it didn’t work. The court responds that “numerous courts have held the CDA bars claims based on a failure to remove content posted by others” (citing Hupp v. Freedom Communications, Doe II v. MySpace, Gentry v. eBay, Caraccioli v. Facebook, Klayman v. Zuckerberg and Sikhs for Justice v. Facebook).
Finally, the court turns to the publicity rights claims. The court says these claims aren’t meritorious because Facebook does not “use” the plaintiff’s identity:
The gravamen of Knight‘s complaint is that Facebook displayed unrelated ads from Facebook advertisers adjacent to the content that allegedly used Knight‘s name and likeness—content, Knight concedes, created by third-party users. He has not, and cannot, offer any evidence that Facebook used his name or likeness in any way.
Publicity rights law is a doctrinal mess. Courts routinely struggle with how to apply publicity rights laws to ad-supported editorial content that references or depicts a plaintiff. The appellate court got to the right place, but I don’t have much faith that future courts will do the same.
Let’s not forget how bad of a ruling this is for the plaintiffs. Facebook’s anti-SLAPP win means the plaintiffs are on the hook for Facebook’s attorneys’ fees, which aren’t going to be cheap (especially given that the appellate costs are included).
Note: On appeal, I joined the EFF’s amicus brief in favor of Facebook.
Case citation: Cross v. Facebook, Inc., 2017 WL 3404767 (Cal. App. Ct. Aug. 9, 2017)
Source: Eric Goldman Legal