Case Summary and Outcome

On January 22, 2021, the Court of Appeal of the State of California upheld a lower instance Court decision dismissing a complaint against Twitter on the grounds that the suit was barred by Section 230 of the Communications Decency Act (CDA) since Twitter’s determination to take down her posts and suspend her account was an editorial decision protected by Section 230 immunity. The case arose after Twitter permanently suspended Meghan Murphy for repeatedly referring to a transgender woman using male pronouns while posting on Twitter. The platform notified Murphy that this activity violated the company’s hateful conduct rules and permanently suspended her account. After the trial court dismissed her case, finding that Twitter had the authority to remove her from the online platform permanently, Murphy appealed that decision. The Court of Appeals held that even assuming section 230 immunity did not apply since Murphy failed to state a viable cause of action, Twitter’s terms of service did state that it reserved the right to suspend or terminate users’ accounts for any or no reason without liability.

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Facts

At the time of the decision, Meghan Murphy was a freelance journalist and writer focused primarily on feminist issues. Murphy joined Twitter in April 2011.
On January 11, 2018, Murphy tweeted: “For the record, this ‘dominatrix’ was also one of those behind the push to get @bcfed to boycott and defund Vancouver Rape Relief, Canada’s longest-standing rape crisis center. He is ACTIVELY working to take away women’s services and harm the feminist movement.” [p.4]. Murphy referred to Lisa Kreut, a well-known public figure who self-identified as a transsexual professional dominatrix in her post.

In May 2018, Murphy tweeted again criticizing Kreut after she and others signed an open letter to organizers of a conference urging them to remove a local poverty activist from a panel discussion because she was a well-documented Trans Exclusionary Radical Feminist. Murphy’s post read: “Lisa Kreut and another trans-identified male/misogynist created a website in order to libel a local woc activist, and published a letter demanding she be removed from a panel scheduled as part of this conference . . . . The organizers caved immediately.” [p.4].
Moments later, Murphy posted a second tweet: “The ‘evidence’ provided to claim the activist should be removed is almost entirely to do with her activism against the sex trade, then literally a few retweets and ‘likes’ from feminists these men don’t like. Seven people signed the thing. It’s ridiculous.” [p.4].

Kreut contacted SheKnows Publishing Network, the company in charge of arranging the advertising for Feminist Current, a blog Murphy managed, to complain about Murphy’s writing. In July 2018, SheKnows responded by pulling all advertising from Feminist Current and terminating its relationship with the site.

On August 30, Murphy posted three more tweets about Kreut: “Aaaand look who publicly admitted to going after @feministcurrent’s ad revenue in an attempt to shut us down, and is now offering tips to other men in order to go after @MumsnetTowers” “This is Lisa Kreut, @lispinglisa, the male BDSMer who was given a platform to promote prostitution at the Vancouver Women’s March this year, who led efforts to defund Vancouver Rape Relief & Women’s Shelter at BCFED 2016 . . . .” “So @BlogHer pulled revenue from a feminist site because a white man who spends his energy promoting the sex trade as empowering for women and targeting/trying to silence/defund women’s shelters, female activists, and feminist media told them to.” [p. 5]. The same day, Twitter locked Murphy’s account. The platform claimed that four of Murphy’s tweets infringed its rules against hateful conduct and required Murphy to delete the tweets if she wished to regain access to her account.

On August 31, Murphy tweeted: “Hi @Twitter, I’m a journalist. Am I no longer allowed to report facts on your platform?” [p.5]. Twitter suspended Murphy’s account for 12 hours and required Murphy to delete the post because it violated the platform’s Hateful Conduct Policy. In response, Murphy appealed the suspension but received no reply.
On October 11, Murphy tweeted, “Men aren’t women,” and on October 15, she posted: “How are transwomen not men? What is the difference between a man and a transwoman?”. Twitter again pointed to Murphy that her tweets violated its Hateful Conduct Policy. Consequently, Murphy tweeted: “This is fucking bullshit @twitter. I’m not allowed to say that men aren’t women or ask questions about the notion of transgenderism at all anymore? That a multi-billion dollar company is censoring BASIC FACTS and silencing people who ask questions about this dogma is INSANE . . . . “[p.6]. On November 15, Murphy’s account was locked again.

Four days later, on November 19, Twitter locked Murphy out of her account and required her to delete her tweet from November 15, in which she criticized Twitter’s actions. However, Twitter did not specify what rule or policy her November 15 post violated.

On November 20, Murphy was again locked out of her account and required to delete her two tweets from May 2018 about Lisa Kraut.

On November 23, Twitter sent Murphy a private e-mail stating that she was being permanently suspended based on a November 8 tweet in which Murphy wrote, “‘Yeeeah it’s him’” over an embedded image of a Google review of a waxing salon posted by “Jonathan Y.” (J.Y.). J.Y. had filed 16 different human rights complaints under the alias J.Y. against female estheticians across Canada for refusing to perform Brazilian waxes on J.Y. because J.Y. had male genitalia.

On November 8, Murphy posted on Twitter, citing J.Y.’s Twitter handle, @trustednerd: “‘Is it true that the man responsible for trying to extort money from estheticians who refuse to give him a Brazilian bikini wax is @trustednerd? Why is the media/court protecting this guy’s identity either way? The women he targeted don’t get that luxury.” [p.7]. Later on, she tweeted: ‘This is also, it should be pointed out, a key problem with allowing men to I.D. as female, change their names, I.D.s etc. They can leave behind these kinds of pasts (and likely continue to redate on women and girls, where that abuse will be reported as perpetrated by a “woman”).” [p.7]

In February 2019, Murphy filed a complaint against Twitter, Inc. and Twitter International Company, arguing the breach of contract, promissory estoppel, and violation of Business and Professions Code section 17200, the Unfair Competition Law (UCL).

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Decision Overview

The main issue for the Court to determine in this case was whether Twitter’s action to suspend Murphy’s account for violating the company’s hateful conduct rules was protected from liability under Section 230 of the CDA. 

Murphy’s suit was based on three causes of action:

1. On a breach of contract. She alleged Twitter breached the express contractual terms of its user agreement by failing to provide notice of changes to the Hateful Conduct Policy, particularly the “new ‘misgendering’ provision,” before enacting them and by enforcing the changes against her retroactively (p.9).
2. On alleged promissory estoppel. Murphy deemed Twitter had violated several unambiguous promises in the user agreement, such as not to monitor or censor content, to notify users of changes 30 days before they are made, and not to apply changes retroactively.
3.  On the alleged violation of the unfair competition law (UCL). Murphy held that Twitter committed an unfair business practice by inserting unconscionable provisions allowing the platform to suspend or ban accounts at any time for any or no reason without liability to Twitter (p.10). Moreover, she considered the platform’s practices “fraudulent” within the UCL because Twitter falsely held itself out as a free speech platform and promised not to monitor or censor user content actively.  

Twitter filed a demurrer and special motion to strike under the antiSLAPP law. The platform argued that Murphy’s claims were barred by the immunity provided in section 230(c)(1) of the Communications Decency Act (CDA) and the First Amendment to the United States Constitution. 

The Court explained that Section 230 of the CDA, as held by the Supreme Court in the case of  Hassell v. Bird, was enacted by Congress for two basic policy reasons: to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material. It highlighted that the statute contains express declarations recognizing the rapid growth of the Internet, the beneficial effect of minimal government regulation on its expansion, and policy objectives of “promot[ing] the continued development of the Internet and other interactive computer services” and “preserv[ing] the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” [p.11].

The Court clarified how Murphy’s claims against Twitter satisfied all three conditions for immunity under Section 230(c)(1) of the CDA. First, it underscored that according to the provision, an “‘interactive computer service’” is “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.” [p.13]. In the immediate case, the Court deemed Twitter met that description. Second, the Court stressed that while Murphy’s claims seek to hold Twitter liable for requiring her to remove posts and suspend her Twitter account and those of other users, Twitter’s refusal to allow certain content on its platform was typical publisher conduct protected by Section 230. Lastly, the Court considered that the third prong was also satisfied because Murphy’s claims concerned Twitter’s removal or refusal to publish “information provided by another information content provider”[p.24].

The Court then held that Murphy’s assertion that the second and third prongs of the section 230 test were not met was incorrect for two reasons. On the one hand, it considered that the only information was Twitter’s promises, not information provided by another content provider. On the other, she sought to treat Twitter not as a publisher of the information supplied by others but as a promisor or party to a contract.

Murphy relied on the case of Barnes v. Yahoo! and Demetriades v. Yelp, Inc. to argue that “[c]ourts routinely have held that Section 230 permits contract, promissory estoppel and consumer fraud claims” such as hers. While the Court recognized that Murphy was correct that some courts have rejected the application of section 230 immunity to a particular breach of contract and promissory estoppel claims, many others have concluded such claims were barred because the plaintiff’s cause of action sought to treat the defendant as a publisher or speaker of user-generated content.

The Court considered that although Murphy relied heavily on Barnes to argue the viability of her claims, they were distinguishable. The Court explained that unlike in the case Barnes, where the plaintiff sought damages for breach of a specific personal promise made by an employee to ensure specific content was removed from Yahoo’s website, “the substance of Murphy’s complaint accuses Twitter of unfairly applying its general rules regarding what content it will publish and seeks injunctive relief to demand that Twitter restore her account and refrain from enforcing its Hateful Conduct Policy” [p.18]. Moreover, the Court highlighted that Murphy had failed to identify the Twitter employee who allegedly promised her they would refrain from removing her tweets or would not suspend her account. Instead, it underscored that by refusing to publish and banning Murphy’s tweets, Twitter’s actions reflected paradigmatic editorial protected by Section 230 [p.19].  

The Court reached its first conclusion by holding that the trial court had correctly sustained Twitter’s demurrer without leave to amend because Murphy’s claims were barred under Section 230(c)(1) of the CDA. 

The Court proceeded to explain why Murphy had failed to state a claim. It believed that even assuming that Section 230(c)(1) immunity did not apply to the immediate case would affirm the trial court’s decision because Murphy failed to state a cognizable cause of action.   

First, the Court noted that Murphy’s cause of action for breach of contract was based on Twitter’s failure to provide notice of changes to its Hateful Conduct Policy and retroactive enforcement. Yet, it considered that as held in the cases of Cox v. Twitter and  Ebeid v. Facebook, Inc., her claim necessarily failed because Twitter’s terms of service expressly state that the platform reserved the right to suspend or terminate users’ accounts for any or no reason without liability. Moreover, while Murphy did not dispute that her claims fell within the scope of Twitter’s liability waiver provision, she contended that the terms were unconscionable and that the Court should strike those provisions and enforce the remainder of the contract. Nevertheless, the Court considered that while the contract was an adhesion contract, Murphy’s argument that she had no opportunity to negotiate the terms of service, standing alone, was insufficient to plead a viable unconscionability claim [p.32].  

Second, the Court clarified that Murphy’s claim Promissory Estoppel claim lacked standing since she could not reasonably rely on promises that Twitter would not restrict access to her account, “‘censor’” her content, or take “account-level” action when the terms of service stated at all relevant times that Twitter could “‘remove or refuse to distribute any Content” and could suspend or terminate an account “‘for any or no reason.” [p. 34].

Third, regarding Murphy’s claim that Twitter allegedly violated the UCL by engaging in unfair and fraudulent business practices, the Court determined that such allegations lacked standing because while Murphy generally alleged that she relied on Twitter for her livelihood, she failed to demonstrate how she suffered any actual loss of income or financial support. Also, the Court mentioned that Murphy’s allegations that Twitter’s general declarations of commitment to free speech principles cannot support a fraud claim, because it is unlikely that members of the public would be deceived by such statements [p.36]. No reasonable person could rely on proclamations that “[w]e believe in free expression and think every voice has the power to impact the world,” that Twitter was the “free speech wing of the free speech party,” or that Twitter’s mission “ ‘is to give everyone the power to create and share ideas and information instantly without barriers,’ ” as a promise that Twitter would not take any action to self-regulate content on its platform [p.36-37].

Lastly, Murphy contended that the trial court erred in sustaining the demurrer without leave to amend. However, the Court considered that contrary to what Murthy held, the trial court did not suggest that her claims would be viable; instead, it had concluded they were barred by Section 230 immunity. 

The Court then briefly concluded that since it had held that each of Murphy’s claims was barred by section 230(c)(1) and that she had failed to state a cause of action under California law, it found it unnecessary to address Twitter’s argument that Murphy’s claims violated the First Amendment. 

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