CDA Shields Facebook From Liability for Violent Profile

By Amy E. Bivins  

The Communications Decency Act, 47 U.S.C. §230, shields Facebook Inc. and its officers from negligence and assault claims arising from a user's profile calling for an uprising against Jews, the U.S. District Court for the District of Columbia ruled Dec. 28 (Klayman v. Zuckerberg, D.D.C., No. 1:11-cv-00874-RBW, 12/28/12).

Judge Reggie B. Walton concluded that both claims arose from Facebook's status as the publisher of user-generated information, and fell squarely within the scope of the statute's immunity for interactive computer services.

The court rejected the plaintiff's contract-based arguments, derived from Barnes v. Yahoo! Inc., 570 F.3d 1096, 37 Med.L.Rptr. 1705 (9th Cir. 2009). Barnes held that a contract-based claim against an interactive service, alleging that the service breached a promise to remove user-generated content, fell beyond the reach of the CDA because it was based on an affirmative promise by the service.

This plaintiff raised the contract-based argument too late for consideration in this proceeding, the court said. “It begs credulity that the plaintiff, a 'highly visible and well known lawyer,' would not have included a claim for breach of contract if he contemplated such a claim as a viable possibility.”

Within CDA's Scope.

The plaintiff, who appeared in this proceeding pro se, serves as chairman and general counsel of an organization called Freedom Watch. While using his Facebook account, he encountered a page titled “Third Palestinian Intifada.” The page called for an uprising, announcing and threatening that “Judgment Day will be brought upon us only once Muslims have killed all the Jews.”

The page had over 360,000 participants. Israel's public diplomacy minister asked Facebook to remove the page. Facebook eventually took it down. The plaintiff sued for assault and negligence.

The CDA shields interactive computer services from claims that seek to treat them as the publisher or speaker of information provided by another information content provider. By its plain terms, the CDA immunizes internet computer service providers--like Facebook--from liability for the publication of information or speech from third parties, the court said, looking to Blumenthal v. Drudge, 992 F. Supp. 44, 26 Med.L.Rptr. 1717 (D.D.C. 1998).

These claims fall squarely within the scope of the CDA, the court held. Courts have routinely held that social networks are interactive computer services.

“When examining a plaintiff's claims through the lens of the CDA, courts must ask whether the alleged conduct 'derives from the defendant's status or conduct as a publisher or speaker,'” the court said, quoting Barnes.

Other courts, such as Fair Housing Counsel of San Fernando Valley v., 521 F.3d 1157, 36 Med.L.Rptr. 1545 (9th Cir. 2008), have construed the term “publisher” as referring to one who reviews, edits, and decides whether to publish or take down third-party content.

Here, the plaintiff alleged that Facebook marketed and allowed Facebook to be used to intentionally assault him. Additionally, he contended that Facebook owed him a duty of care and breached it by failing to remove the threatening post.

Accordingly, the court found the claims to be based on the defendants' editorial decisions regarding user-generated content, and barred by the CDA.