Ninth Circuit Rules for Facebook in Content Deletion Case

The Ninth Circuit issued an opinion regarding Jason Fyk, who appealed the district court’s decision to dismiss his state law claims against Facebook “as barred pursuant to the Communications Decency Act (CDA).” Fyk, who relied on Facebook for his business, alleged that the platform removed some of his content from the site. This content was allegedly de-published by Facebook and then re-published by Facebook after Fyk sold the content to a competitor. The Ninth Circuit affirmed the district court’s decision.

According to the Communications Decency Act, ““[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.’” Further, “[w]hen a plaintiff cannot allege enough facts to overcome Section 230 immunity, a plaintiff’s claims should be dismissed.” The Ninth Circuit concluded that the district court “properly determined that Facebook has § 230(c)(1) immunity from Fyk’s claims in this case.”

Fyk’s argument was based on the third requirement of Section 230. Fyk asserted that Facebook is not entitled to Section 230 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 Ninth Circuit disagreed. They pointed to Kimzey v. Yelp! Inc., which notes that “[a] website may lose immunity under the CDA by making a material contribution to the creation or development of content.” Fyk “does not identify how Facebook materially contributed to the content of the pages.” The court added that regardless of whether Facebook received a monetary benefit from its conduct, the conduct does not “transform Facebook into a content developer.”

The court also rejected Fyk’s argument that giving “§ 230(c)(1) immunity to Facebook renders § 230(c)(2)(A) mere surplusage.” Rather, this “provides an additional shield from liability.” Additionally, the court also rejected Fyk’s claim that “Facebook is estopped from relying on § 230(c)(1) immunity based on its purported pre-suit reliance on § 230(c)(2)(A) immunity to justify its conduct. The CDA precludes the imposition of liability that is inconsistent with its provisions.”

The Ninth Circuit affirmed the district court’s decision to dismiss Fyk’s claims against Facebook. Fyk was represented by Putterman + Yu, while Facebook was represented by Keker & Van Nest.