Facebook, Instagram Do Not “Like” Fake Engagement Service

On Tuesday in the Northern District of California, plaintiffs Facebook and Instagram filed a complaint against Sean Heilweil and Jarrett Lusso, doing business as Boostgram, claiming the defendants violated Instagram’s terms and policies through their fake engagement business, which falsely inflates users’ likes and followers on their Instagram accounts.

According to the complaint, since at least August 2015, the defendants have “operated an unlawful business using the website boostgram.com. Defendants’ business artificially inflated the ‘likes’ and ‘followers’ of Instagram accounts (a practice known as ‘fake engagement’).” Facebook and Instagram proffered that the defendants “used a network of computers or ‘bots,’ computer scripts, and their customers’ Instagram accounts to deliver automated ‘likes’ and ‘followers’ to Instagram accounts.” The defendant reportedly promoted their service using a diluting domain name, also violating Instagram’s terms of use and federal laws. Moreover, the plaintiffs asserted that the defendants interfered with Instagram’s service and “created an inauthentic experience for Instagram users, and attempted to fraudulently influence Instagram users for their own enrichment.”

Instagram asserted that its users “can gain followers, views, and likes, but only from other registered Instagram users.” Instagram noted that some users try to increase followers, views, and comments for marketing purposes to increase visibility and popularity on the platform. 

The defendants charge $31 per week per user account for their services, according to the complaint, and use an automated process and bots to artificially increase users’ likes and followers in violations of various terms, policies, and laws. As a result, Instagram claimed that the defendants have violated its terms and policies, while they unjustly enriched themselves.

Instagram stated that everyone who uses Instagram has agreed to its Terms of Use and other rules, including its Community Guidelines and Platform Policy which, since April 2018 have, among other things, prohibited users from “(a) ‘doing anything unlawful, misleading, or fraudulent or for an illegal or unauthorized purpose’; (b) ‘interfering with or impairing the intended operation of Instagram’; (c) ‘attempting to buy, or sell … any aspect of an Instagram account.’” Additionally, Instagram’s Community Guidelines bar users from “artificially collecting likes and followers.” Instagram contended that the defendants have violated these policies because they allegedly “market and provide fake engagement services for Instagram and conducted financial transactions with their customers.” 

Instagram also asserted that the defendants committed trademark infringement, which is also against its agreed to terms and policies. In 2014 the defendants registered and used the boostgram.com domain name, which purportedly dilutes the Instagram Trademarks. Instagram averred that its marks predate the defendants’ use of “Boostgram.” 

According to Facebook and Instagram, since 2017 they have taken enforcement efforts against the defendants, including sending numerous cease and desist letters and disabling their accounts. These efforts did not work, the defendants continued their operation by creating “at least seven new Instagram accounts in order to access and use Instagram.” Additionally, the defendants allegedly responded that they did not intend to stop their operations or services.

The defendants are accused of violating the California Comprehensive Computer Data Access and Fraud Act, the Computer Fraud and Abuse Act, and the Lanham Act. Facebook and Instagram have sought an award for damages, an accounting and disgorgement of all profits from their alleged illicit service, a permanent injunction, and other relief. 

Facebook and Instagram are represented by Hunton Andrews Kurth LLP as well as Facebook’s Platform Enforcement and Litigation team.