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.

Filed Under: cda 230, content moderation, content removals, jason fyk, section 230
Companies: facebook, wtfnews


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  • identicon
    A nonny mouse, 25 Jun 2019 @ 12:07pm

    Obligatory Airplane! reference?

    What a pisser...

    reply to this | link to this | view in chronology ]

  • identicon
    Nick-B, 25 Jun 2019 @ 12:30pm

    Wait... isn’t section 230 used as a defense against ILLEGAL content hosted by sites like Facebook, from being used to sue them? By claiming they are not protected by it because HE posted it, is like saying he can post child pornography to Facebook then sue Facebook for trafficking in child pornography.

    Isn’t it?

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 25 Jun 2019 @ 12:35pm

      Re:

      230 lets site moderate - they can remove lawful or unlawful content.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jun 2019 @ 1:25pm

      Re:

      Child pornography is a bad example, because it's criminal, not civil, and 230 doesn't apply. There are other laws in place that grant platforms immunity for hosting child porn uploaded by third parties, provided the material is removed upon discovery and reported to the proper authorities.

      That said, 230 just says (in a very simplified form) "You can't sue Facebook for something posted by a user."

      reply to this | link to this | view in chronology ]

      • identicon
        Dan, 25 Jun 2019 @ 6:42pm

        Re: Re:

        That said, 230 just says (in a very simplified form) "You can't sue Facebook for something posted by a user."

        ...and more to the point for purposes of this case, you also can't sue Facebook for their moderation actions with respect to such content.

        reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 26 Jun 2019 @ 12:53am

      Re:

      "Wait... isn’t section 230 used as a defense against ILLEGAL content hosted by sites like Facebook, from being used to sue them?"

      Part of it, but not the way you envision, most certainly. When it comes to liability 230 provides immunity to the platform given that they can't be expected to moderate every posters upload in advance.

      But the main use of 230 is the way it allows the platform owner to moderate its own platform.

      It could be summarized as "You own this wall. You can not be held responsible for people sticking post-it notes on this wall. No one gets to blame you when you choose to remove post-it notes from your wall".

      Of course, to the professional troll community that last part of 230 is an abomination because it means that when they take a dump in public they can't force everyone to sniff what they left behind anymore.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jun 2019 @ 2:20pm

    Pissing in the Wind

    It looks like he never actually expected to win the lawsuit.

    https://mobile.twitter.com/JasonFyk/status/1032984425645133825

    Last year Fyk made the rounds giving interviews with all the usual conservative media outlets, which seems kind of odd since his unorthodox "business" is the sort of thing conservatives have traditionally denounced.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 25 Jun 2019 @ 2:52pm

      Re: Pissing in the Wind

      Ah, nothing like utterly groundless lawsuits designed solely to drum up PR, because that's exactly what the legal system is meant for...

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Jun 2019 @ 3:31pm

        Re: Re: Pissing in the Wind

        It gets exploited from both ends. People on the receiving end of groundless lawsuits have been known to use their "victimhood" for both PR and fundraising purposes, pocketing the remainder of donor funds once the legal expenses have been paid, keeping the gravy train rolling and milking their victimhood for all it's worth. That kind of bait-and-switch fundraising often turns out to be a substantial income enhancement for those cunning enough to pull it off.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Jun 2019 @ 7:04pm

        Re: Re: Pissing in the Wind

        Getting a vaguely John Smith vibe from the OP and his follow-up. It sounds suspiciously like the "woman works as a hooker and sues anyone who calls her that" scam John said "happened countless times".

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jun 2019 @ 3:44pm

    Dont leave pee in the social pool or you will be asked to leave.

    reply to this | link to this | view in chronology ]

  • icon
    allengarvin (profile), 25 Jun 2019 @ 9:45pm

    Except Facebook is basically a public utility, like electricity. I have a constitutional right to pee on a 345 kV wire.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 26 Jun 2019 @ 2:42am

      Re:

      "Except Facebook is basically a public utility, like electricity."

      Nope. Public utility does not cover specific platforms. Electricity and internet connection are public utilities, but Facebook itself isn't that. That would be like claiming that your right to internet access means someone needs to give you a computer.

      "Public utility" simply means no one gets to cut off your water, electricity, or right to access communications networks without some form of due process. It doesn't mean more than that.

      "I have a constitutional right to pee on a 345 kV wire."

      Nope. I think you'll find that should you do so on an electric wire whether it is owned and operated by a private entity or a governmental one then you are liable to both civil and criminal charges.

      You are simply not allowed to urinate on someone else's private property. Neither state law nor the constitution will back you up there.

      reply to this | link to this | view in chronology ]

    • identicon
      Chip, 26 Jun 2019 @ 8:44am

      Re:

      Your being "Sarcastic", right?

      Every Nation eats the Paint chips it Deserves!

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 27 Jun 2019 @ 5:11am

        Re: Re:

        "Your being "Sarcastic", right?"

        Not yet. So far I've only covered the strictly legal and theoretical implementations of "public utility".

        If I wanted to be sarcastic about it I might have pointed out how such a hallowed and benevolent concept as "public utility" would surely never end up becoming the handy lever by which some de facto monopoly or other could extort the general public for imaginary sums of money against a reciprocity of unadulterated shit. I might bring up "drinking the Flint river", for instance.

        But I shan't, because I'm not that sarcastic.
        /s

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    googer (profile), 26 Jun 2019 @ 1:37am

    KROGER CUSTOMER FEEDBACK SURVEY

    Kroger is recognized as the biggest and leading supermarket chain in the United States of America. This company was found in 1883 by Bernard Kroger. https://konlinesurvey.com/kroger-customer-feedback-survey/

    reply to this | link to this | view in chronology ]

    • icon
      Hugo S Cunningham (profile), 26 Jun 2019 @ 4:19am

      Re: KROGER CUSTOMER FEEDBACK SURVEY

      This is the second purely commercial spam I have seen posted to Techdirt today. Should there be a different flag for it to expedite removal?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Jun 2019 @ 10:53am

        Re: Re: KROGER CUSTOMER FEEDBACK SURVEY

        Agreed. The flag button has been so abused that it's become more like a "opinions I don't agree with" tag. I was just reading a post from last February with over 200 comments for the first time and most of the dozens of hidden comments were rational arguments that had the misfortune of being a minority opinion or involved posting links to sites that some people apparently don't want others to know about. It says a lot about Techdirt when all of the most informative posts get deleted, but maybe that's what the spirit of "deplatforming" is all about.

        reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 26 Jun 2019 @ 10:28pm

        The spam filters TD uses are good, but not perfect, and as such as annoying as it is a few will slip through from time to time.

        As for an expatiated review/removal tag, something like that would be immediately abused by the trolls flagging everything they could to force TD staff to run around checking each one to see which are and are not legitimate, and as such that would be a fix worse than the problem it was mean to address.

        reply to this | link to this | view in chronology ]

        • icon
          Hugo S Cunningham (profile), 27 Jun 2019 @ 4:04am

          Re:

          Your reply makes sense; thanks. I had not considered the likelihood of spam filters (automatic pre-screening), but of course I would have seen a lot more than two spam messages in months without them.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jun 2019 @ 7:01am

    "Self-Made Millionaire"

    Oh no, not another one of those.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Jun 2019 @ 6:47am

    But switch out "Google" for "Facebook"

    What you wrote means "take out all the copies of "Google" and switch them for "Facebook" ", which is the opposite of what you should've been meaning.
    You mean "But switch out "Facebook" for "Google" " or "But switch in "Google" for "Facebook" ", I think.

    reply to this | link to this | view in chronology ]


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