Case Summary and Outcome

On June 12, 2020, the United States Court of Appeals for the Ninth Circuit determined that a District Court had correctly concluded that Facebook had immunity under § 230(c)(1) of the Communications Decency Act (CDA). The case arose after Jason Fyk, a user who managed Facebook pages dedicated to sharing videos and pictures of people urinating, alleged that the platform had blocked and removed content to make room for its own sponsored advertisements. According to Mr. Fyk, the actions taken by the platform destroyed and severely devalued his Facebook pages. The Court of Appeals determined that contrary to Mr. Fyk’s arguments, the distinction between a so-called “first party” and “third party” under paragraphs 230(c)(1) and 230(c)(2)(a) did not make the CDA immunity provision inapplicable.

Facts

On August 22, 2018, Mr. Fyk sued Facebook, alleging fraud, unfair competition, extortion, and tortious interference with his economic advantage based on Facebook’s anti-competitive animus. Mr. Fyk used Facebook’s platform to create a series of Facebook pages dedicated to photos and videos of people urinating. He alleged Facebook blocked some of his content and removed it to make room for its own sponsored advertisements. Mr. Fyk contended that Facebook’s actions destroyed or severely devalued his pages. More, he deemed Facebook was not entitled to immunity under Section 230(c)(1) of the CDA because although the statute provides immunity for a website operator to remove third-party material, he created the content on his pages.

Consequently, Facebook presented a motion to dismiss on two bases. On the one hand, the company held that Mr. Fyk’s claims were barred by the CDA, which immunizes internet platforms like Facebook for claims relating to the moderation of third-party content. On the other hand, Facebook contended that Mr. Fkye had failed to state a cause of action for each of his claims.

On June 18, 2019, the District Court for the Northern District of California determined that Mr. Fky’s published content qualified as information provided by another information content provider within the meaning of Section 230 of the CDA, which bars all claims that seek to hold an interactive computer service liable as a publisher of third-party content. Thus, the District Court granted Facebook’s motion to dismiss without leave to amend.

Mr. Fyk appealed the District Court’s order and judgment, claiming Facebook was not entitled to § 230(c)(1) immunity because it acted as a content developer by allegedly de-publishing pages that he created and then re-publishing them for another third party after he sold them to a competitor.

Decision Overview

The main issue for the Appellate Court to analyze in this case was if the District Court correctly determined that Facebook had immunity under § 230(c)(1) of the CDA from Fyk’s claims. 

The Court noted that § 230(c)(1) of the CDA states that “[i]mmunity from liability exists for ‘(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.’” [p. 2]Moreover, it explained that, as held in the case of Dyroff v. Ultimate Software Grp., Inc., a plaintiff’s claims should be dismissed if they cannot allege enough facts to overcome Section 230 immunity. 

In the Appellate Court’s opinion, the district court correctly resolved that Facebook has § 230(c)(1) immunity from Mr. Fyk’s claim. It recalled that Mr. Fyks’s appeal focused only on the third requirement of § 230(c)(1), contending that Facebook was not entitled to immunity because it acted as a content developer by allegedly de-publishing pages that he created and then re-publishing them for another third party after he sold them to a competitor. However, the Court disagreed with the plaintiff’s claim.

On the one hand, the Court held that, as stated in the case of Kimzey v. Yelp! Inc., “[A] website may lose immunity under the CDA by making a material contribution to the creation or development of content.” [p. 3] Yet, while Mr. Fyk conceded that the pages were the same after Facebook permitted their re-publication as when he created and owned them, he did not identify how Facebook materially contributed to the content of the pages. The Court once again cited the case of Kimzey v. Yelp! Inc. to clarify that re-publishing or disseminating third-party content in the same format was not equal to creating or developing content. Further, it stressed that Mr. Fyks’s argument that Facebook allegedly took its actions for monetary purposes did not convert the platform into a content developer. 

On the other hand, the Court rejected Mr. Fyk’s argument that his case was similar to the issue of Fair Hous. Council v. Roommates.com, LLC. According to Mr. Fyk, Facebook allegedly “discriminated” against him by singling out his pages. Nonetheless, the Court clarified that he mistakenly asserted the illegality of the particular content at issue in the case of Fair Housing with an anti-discrimination rule that had never been adopted to apply § 230(c)(1) immunity. Contrary to Fyk’s arguments, the Court explained that in the immediate case, the fact that he generated the content at issue did not make § 230(c)(1) inapplicable. 

Finally, the Court rejected Fyk’s argument that granting § 230(c)(1) immunity to Facebook rendered § 230(c)(2)(A) mere surplusage. As held in the case of Barnes v. Yahoo!, Inc., the Court emphasized that § 230(c)(2)(a) provides an additional shield from liability, and thus, those “who can take advantage of this liability shield are not merely those whom subsection (c)(1) already protects, but any provider of an interactive computer service.” [p. 5] 

In light of the above, the Court agreed with the district court’s determination to dismiss Mr. Fyks’s claim.