167 F. Supp. 3d 1056
N.D. Cal.2016Background
- Plaintiff Franco Caraccioli alleges a third party created a Facebook account using his name and posted sexually explicit photos/videos that were sent to his contacts; he reported the account and Facebook initially declined to remove it, then deleted it after he threatened legal action.
- Plaintiff (pro se) sued Facebook under California law for defamation, libel, intrusion upon seclusion, public disclosure of private facts, false light, IIED, negligent infliction of emotional distress, breach of contract, negligent supervision/retention, and UCL violations.
- Plaintiff incorporated Facebook’s Terms of Service (TOS) into his complaint and also later sought leave to add a § 3344 (unauthorized use of likeness) claim.
- Facebook moved to dismiss under Rule 12(b)(6), arguing the complaint contradicts the TOS and is barred by Section 230(c)(1) of the Communications Decency Act (CDA).
- The court found Plaintiff’s allegation that Facebook “republished” or became the publisher of the third‑party content contradicted the incorporated TOS and was a legal conclusion, and that Section 230 immunized Facebook from liability for third‑party content.
- The court dismissed all claims with prejudice (no leave to amend) and denied Plaintiff’s motion to add the § 3344 claim as futile because it likewise would be barred by § 230.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Facebook’s Terms of Service foreclose Plaintiff’s republishing theory and related claims | TOS do not preclude liability; Facebook republished content by reviewing and continuing to display it | TOS disclaim responsibility for third‑party content and contain releases/warranties that contradict Plaintiff’s republishing allegation | The incorporated TOS contradict Plaintiff’s republishing allegation; that allegation may be disregarded and many claims fail as a result |
| Whether § 230(c)(1) bars Plaintiff’s state‑law claims predicated on third‑party content | Facebook’s refusal to remove objectionable content after review makes it liable despite § 230 immunity | § 230 immunizes interactive service providers from being treated as the publisher/speaker of third‑party content, including failure to remove content | § 230(c)(1) bars all claims premised on holding Facebook liable as publisher/speaker of third‑party content; dismissal granted |
| Whether Plaintiff may amend claims to cure defects | Amendment can add a republishing theory or identify duties despite TOS and § 230 | Amendment would be futile because TOS and § 230 bar the asserted theories | Leave to amend denied as futile; claims dismissed without leave to amend |
| Whether proposed § 3344 claim (unauthorized use of likeness) survives | Facebook knowingly used Plaintiff’s likeness for commercial benefit by keeping content available | The § 3344 claim is an attempt to hold Facebook liable for third‑party content and is thus barred by § 230 | Proposed § 3344 claim would be barred by § 230 and leave to add it was denied |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must state plausible claim to survive dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (courts need not accept legal conclusions as facts)
- Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (§ 230 immunity limits liability where defendant is not an information content provider)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (§ 230 protects interactive computer services from liability for third‑party content)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (§ 230 bars suits treating a service as publisher/speaker for content provided by others)
- Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011) (distinguishing cases where defendant is alleged to have materially contributed to content)
- Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014) (framework for applying § 230(c)(1))