Facebook Not Legally Liable For 'JerkingMan' Video Posted By One Of Its Users

Legal Issues

from the when-I-think-about-you-I-represent-myself dept

Franco Caraccioli, who sued Facebook rather than the party who uploaded a video of him pleasuring himself (under the username “Franco CaraccioliJerkingman”), has lost his lawsuit. This is due to his decision to pursue a party protected under Section 230, rather than the uploader, against whom he might have been able to pursue actual criminal charges.

Caraccioli’s original complaint argued that Facebook’s refusal to delete the account amounted to defamation (among other things). It wasn’t the craziest of pro se filings, but given the subject matter, Caraccioli might have been better served with another reread or two before submitting it. It accused Facebook of “thrusting” Caraccioli’s video into the public eye — including the eyes of children — and noted that the “sensitivity” of the content was due to the reasonable expectations of any person who “holds their genitalia as a private part.”

Eric Goldman, writing for the new Forbes “ad-light” experience (which you too can “enjoy” for 30 days if you just shut off your ad blocker/script blocker!), has more details and analysis.

The applicable federal law, 47 USC 230 (Section 230), has been on the books for over 20 years, and it’s extremely clear: websites aren’t liable for third party content. Caraccioli acknowledged that an unknown third party created the fake Facebook account, so the court easily concluded that Section 230 eliminates Facebook’s liability for it. Caraccioli argued Section 230 didn’t apply because Facebook “reviewed [the fake account] and decided not to remove it,” so this case involved “editorial inaction rather than affirmative editorial action.” Plaintiffs have unsuccessfully tried these arguments many times before, and the arguments didn’t work this time either…

That was just one of Caraccioli’s attempts to skirt Section 230. He also (belatedly) argued the posting of the video violated his publicity rights. Not only was this attempt made too far into the process, but Section 230 also protects Facebook, et al. from publicity rights-violating material posted by third parties.

He also tried the “republication” angle, but that, too, was shot down. No matter what cause of action he would have brought, Caraccioli would have had an extremely difficult time getting a court to hold Facebook responsible for a user’s postings. (Well, at least no court in the United States…)

As Goldman points out, Caraccioli’s chances of success would have greatly increased if he’d chosen to target the actual poster, rather than target the entity easier to locate and serve.

Although we’re sympathetic to how the fake account harmed Caraccioli, he chose the wrong defendant. If Caraccioli could find the perpetrator, he should have much greater success in court. I’m maintaining a roster of over 15 unpublicized non-consensual pornography cases where plaintiffs have won in court (I hope to write up this research later this year), and Caraccioli’s facts are similar to some of these other rulings. Caraccioli just needs to leave Facebook out of it.

Locating and serving a site’s user can be incredibly difficult, but going after the service provider pretty much eliminates any chance of success. Going after the actual party behind the post increases the odds of success, even if the initial steps are much harder than tossing a filing fee and a PDF into the nearest federal courtroom.

Filed Under: franco caraccioli, jerkingman, liability, section 230
Companies: facebook