Self-Made Millionaire Loses Lawsuit Over Facebook's Removal Of Videos Of People Urinating
from the piss?-christ. dept
Facebook promised to clean up its platform to make it more family-friendly. And it has done so, with varying degrees of success. If anything, it’s tried too hard and caused a lot of collateral damage to content that should never have been found objectionable in the first place.
For that effort, it has been vilified by everyone from the President of the United States to angry individuals who can’t seem to find a better outlet for their ignorance. Like other social media companies attempting to do the impossible, it’s getting sued for running its business the way it wants to.
Jason Fyk is one of several plaintiffs who have sued social media companies for removing their posts or banning their accounts. Fyk is a little different than the others we’ve covered recently. Fyk is a self-made millionaire whose business model relies almost entirely on Facebook.
As the creator of WTFNews (and dozens of other Facebook pages), Fyk is perhaps more directly affected by content removal than the average misguided plaintiff. When Facebook takes down content you’re hoping will generate clicks and cash, it hurts your bottom line. Fyk is inextricably intertwined with Facebook, but that fact does not make his lawsuit against the company more meritworthy than those claiming anti-conservative bias or hoping to hold social media platforms directly responsibile for acts of terrorism.
As Eric Goldman explains, the content Fyk is suing over is precisely the sort of thing you’d expect Facebook to find and remove, given its history of moderation.
Jason Fyk created Facebook pages “dedicated to videos and pictures of people urinating….Plaintiff alleges that Facebook blocked content posted by Plaintiff and removed content in order to make room for its own sponsored advertisements. Plaintiff contends these actions by Facebook destroyed or severely devalued his pages.”
There’s nothing in this lawsuit about an anti-conservative bias. Nothing suggests Fyk’s action here aligns him with alt-right personalities who’ve been deplatformed. Nevertheless, the idea of suing social media companies seems to appeal to those who think the government should leave private businesses alone. This likely explains Fyk’s decision to discuss his lawsuit on Fox & Friends.
I doubt he’ll be invited back. The court says Section 230 immunizes Facebook against this lawsuit. Fyk hoped to avoid this obvious conclusion by claiming he wasn’t suing Facebook over posts created by another user. His definition of third-party content apparently doesn’t stretch as far as covering stuff he posted to Facebook. It’s a very weird argument to make. Fyk says he’s a first party: he created the uploaded content that was ultimately removed by Facebook. What Fyk is missing — and what the court points out [PDF] — is that the removal of third party content (i.e., anything not created by Facebook) is protected and does not remove Facebook’s Section 230 immunity.
With regard to the second element of the CDA immunity provision, Plaintiff contends that Facebook is not entitled to immunity because although the statute provides immunity for a website operator for the removal of third-party material, here there is no third party as Plaintiff himself contends that he created the content on his pages. This was precisely the argument rejected by this Court in Sikhs for Justice which distinguished the reference to “another information content provider” from the instance in which the interactive computer service itself is the creator or developer of the content. 144 F. Supp. 3d at 1093-94. In other words, “the CDA immunizes an interactive computer service provider that ‘passively displays content that is created entirely by third parties,’ but not an interactive computer service provider by creating or developing the content at issue.” Id. at 1094. Put another way, “‘third-party content’ is used to refer to content created entirely by individuals or entities other than the interactive computer service provider.” Id. (citing Roommates, 521 F.3d at 1162). Here, there is no dispute that Plaintiff was the sole creator of his own content which he had placed on Facebook’s pages. As a result, those pages created entirely by Plaintiff, qualifies as “information provided by another information content provider” within the meaning of Section 230.
With that, Fyk’s lawsuit is dead and he will not be allowed to amend his complaint.
Because the CDA bars all claims that seek to hold an interactive computer service liable as a publisher of third party content, the Court finds that the CDA precludes Plaintiff’s claims. In addition, the Court concludes that granting leave to amend would be futile in this instance as Plaintiff’s claims are barred as a matter of law.
If nothing else, Fyk’s experience is a cautionary tale about making your online business entirely reliant on someone else’s platform. At some point, the rules will change and they way you used to make money won’t work anymore. Fyk’s original complaint details a long list of actions Facebook took that eventually stripped his pages of value.
But switch out “Google” for “Facebook” and the lawsuit could have been written by any SEO huckster in response to the company’s numerous algorithm changes. Or leave the wording the same and any major publication that bought into Facebook’s promise to deliver monetized news from behind the walls of its garden could raise the same complaints. Platforms operating in opaque and inconsistent ways sucks for everyone, not just those who’ve hitched their financial wagon to someone else’s platform. But while it sucks the most for a self-made millionaire who rode Facebook as far as it was willing to carry him, it doesn’t mean the solution is litigating yourself back to financial health.