Content Regulation / Censorship
ABC & Others v. Telegraph Media Group Limited
Closed Contracts Expression
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A District Court in California ruled that Facebook’s conduct in removing a Russia news distribution organization’s Facebook account and page did not violate the First Amendment’s protection of freedom of expression and that its conduct was immunized from civil suit by US legislation. Facebook had shut down the page following the 2016 United States presidential election on the grounds that it was one of the “inauthentic” accounts that had allegedly sought to inflame social and political tensions in the United States. The Court held that Facebook had not violated the First Amendment as it is neither a public forum nor do its actions amount to state action and that as Facebook is a provider of interactive computer service it had immunity under the Communications Decency Act.
On April 3, 2018 Facebook shut down the account of FAN, a Russian corporation which “gathers, transmits and supplies domestic and international news reports and other publications of public interest.” [p. 1] Following the 2016 US presidential election Facebook began shutting down various inauthentic accounts which “allegedly sought to inflame political tensions in the United States.” [p. 2] These accounts were allegedly controlled by the Russia-based Internet Research Agency (IRA), an “agency which allegedly employed fake accounts registered on major social networks . . . to promote the Russian government’s interests in domestic and foreign policy.” [p. 2] FAN’s page was one of more than 270 Russian language accounts shut down on April 3 on the grounds that they had violated Facebook’s Terms of Service. Facebook’s co-founder, chairman and CEO, Mark Zuckerberg, stated in a blog that these accounts and pages were removed because they were controlled and/or set up by the IRA to spread divisive content and interfere in the US presidential election. [p. 4]
On November 20, 2018, FAN launched proceedings against Facebook in the District Court of California in San Jose. FAN argued that by shutting down their page Facebook had violated the Constitution’s First Amendment protecting freedom of speech and the US Civil Rights Act and the California Unruh Civil Rights Act. Facebook responded by filing a notice to dismiss FAN’s application.
District Judge Lucy H. Koh delivered the judgment of the District Court. The central issues for the Court to determine were whether Facebook had immunity from civil suit under the Communications Decency Act, 1996 and if Facebook violated the First Amendment.
FAN stated five causes of action: (1) a Bivens claim for violation of the First Amendment; (2) damages under Title II of the U.S. Civil Rights Act of 1964 and 42 U.S.C. Section 1983; (3) damages under the California Unruh Civil Rights Act; (4) breach of contract; and (5) breach of the implied covenant of good faith and fair dealing. [p. 6] Facebook argued that the Communications Decency Act rendered it immune from the second to fourth causes of actions, and that the first, the Bivens claim for violation of the First Amendment, could not succeed because the First Amendment is only applicable to state actors and as Facebook is not a state actor it could not have violated the First Amendment.
In respect of the application of Communications Decency Act, FAN submitted that the Act would not immunize Facebook because the instant case neither concerns obscenity not any other form of unprotected speech and that the case concerns political speech which strikes at the heart of the First Amendment. [p. 12] In respect of the First Amendment claim, FAN asserted that Facebook constitutes a public forum because Facebook “operates a freely available public forum, open to any and all people who are at least 13 years old, with internet access and a valid e-mail address” and that Facebook’s actions amount to state action. [p. 14]
The Court examined the nature of the Communications Decency Act which sought to prohibit the treating of a provider of interactive computer service as a publisher of any information provided by another [47 U.S.C. § 230(c)(1)]. The immunity under this Act does not extend to any constitutional violation, and so would not apply to FAN’s claim that Facebook infringed the First Amendment by shutting its account. The Court referred to the Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1163 (9th Cir. 2008) and Riggs v. MySpace, Inc., 444 Fed. App’x 986, 987 (9th Cir. 2011) cases which had held that the Act immunizes decisions to delete user profiles and to remove user-drive content. With reference to Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1092 (2015) the Court explained that the Act applies if “(1) Defendant is a provider or user of an interactive computer service; (2) the information for which Plaintiff seeks to hold Defendant liable is information provided by another information content provider; and (3) Plaintiff’s claim seeks to hold Defendant liable as the publisher or speaker of that information.” [p. 8]
Applying this three-pronged test, the Court held that Facebook was an interactive computer service provider, that FAN was the information content provider, and that as FAN’s claims were based on Facebook’s decision not to publish FAN’s content FAN treated Facebook as a publisher. The Court referred to the Sikhs for Justice and Ebeid v. Facebook, Inc., 2019 WL 2059662, at *1-*3 (N.D. Cal. May 9, 2019) cases in reiterating that the Act can immunize liability for removal of political speech: the Court rejected FAN’s argument that the Act should not apply in cases of political speech, and stated that “[i]mmunity under the Communications Decency Act does not contain a political speech exception” and that the Act did not distinguish between political and non-political speech. [p. 12]
Accordingly, the Court held that Facebook was immunized from liability and dismissed FAN’s four non-constitutional causes of action.
In examining FAN’s claim that Facebook’s conduct violated the First Amendment, the Court referred to Hudgens v. NLRB, 424 U.S. 507, 513 (1976) and Redden v. The Women’s Ctr. of San Joaquin Cty., 2006 WL 132088, at *1 (N.D. Cal. Jan. 17, 2008) and observed that the constitutional guarantee of free speech is a guarantee only against abridgment by federal or state government: the First Amendment “does not apply to private corporations or persons.” [p. 13]
The Court rejected FAN’s argument that Facebook is a public forum, and referred to the Ebeid, Prager Univ. v. Google LLC 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018), Buza v. Yahoo!, Inc. 2011 WL 5041174, at *1 (N.D. Cal. Oct. 24, 2011) and Langdon v. Google, Inc. 474 F. Supp. 2d 622, 632 (D. Del. 2007) cases which had specifically held that private companies providing internet services are not public fora. [p. 15] The Court quoted the US Supreme Court in Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972) which had “held that property does not ‘lose its private character merely because the public is generally invited to use it for designated purposes’” and held that “simply because Facebook has many users that create or share content, it does not mean that Facebook, a private social media company by Plaintiffs’ own admission in the complaint, becomes a public forum.” [p. 15] In addition, the Court rejected FAN’s submission that Facebook “operates as a public forum by engaging in functions that are traditionally and exclusively governmental.” [p. 16] The Court referred to the Prager and Ebeid cases which had also held that Facebook had not engaged in functions exclusively reserved for the state and quoted the Harris v. Kern Cty. 2019 WL 1777976, at *6 (E.D. Cal. Apr. 23, 2019) case which held that Facebook does not satisfy the public function test because Facebook “had [not], “in essence, become the government.” [p. 17] Accordingly, the Court held that “by operating its social media website, Facebook has not engaged in any functions exclusively reserved for the government [and] [t]herefore, Facebook does not operate as a public forum, so Facebook’s actions do not amount to state action under the public function test.” [p. 18]
The Court also rejected FAN’s argument that Facebook’s action amounted to state action in terms of the joint action test. This test asks “whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights” and is proved by demonstrating a conspiracy between a private party and the state or that the “private party was a willful participant in joint action with the state or its agents.”[p. 18] FAN had submitted that “Facebook allegedly supplied the government with information that might relate to the government’s investigation into Russian interference with the 2016 presidential election” [p. 19], but, with reference to Deeths v. Lucile Slater Packard Children’s Hosp. at Stanford, 2013 WL 6185175, at *10-*11 (E.D. Cal. Nov. 26, 2013) the Court stated that “supplying information [to the state] alone does not amount to conspiracy or joint action.” [p. 19] Accordingly, the Court held that Facebook was not a willful participant in joint action with the government. In addition, the Court noted that “there is no indication that the government directly or jointly conceived, facilitated, or performed a role in Facebook’s decision to shut down FAN’s Facebook page or the decision to prevent FAN from accessing its Facebook account.” [p. 21] The Court also held that there was no evidence that Facebook conspired with the government in shutting down FAN’s account.
The Court held that Facebook’s shutting down of FAN’s account did not constitute an exception to the rule that the First Amendment does not apply to private bodies. Accordingly, the Court dismissed FAN’s application under the First Amendment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The District Court in California, US found that private internet service providers, like Facebook, are entitled to shut down users’ accounts, and that such action does not infringe the First Amendment’s protection of freedom of speech and is immunized from civil action. In this case, involving allegations of Russian interference in the 2016 US presidential election through social media, this self-regulation by social media companies was purportedly done to curb such interference and the spread of false information on the social media platforms.
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