Last month, a California federal judge held that Facebook is not
responsible for allegedly deceptive advertisements that appeared on
its platform, even if Facebook solicited the ads and failed to
enforce its own advertising policies.
California Facebook users sued Facebook’s parent company
Meta, asserting false advertising, negligence, and other claims
under California law. The plaintiffs claimed that they had
been deceived by various fraudulent ads that had appeared on
Facebook. The Plaintiffs alleged that, after clicking on
third-party advertisements seen on Facebook, they purchased
items that they never received. The Plaintiffs argued that
the tech giant should be held liable for the false advertising
running on its platform because it “actively solicits,
encourages, and assists scam advertisers and Meta knows, or should
know, that the scammers use its platform to defraud users with
deceptive ads.”
Meta moved to dismiss the action, arguing that the
Plaintiffs’ claims were barred by Section 230 of the
Communications Decency Act. Section 230 of the CDA provides
that “no provider or user of an interactive computer service
shall be treated as the publisher or speaker of any information
provided by another information content provider.”
A website that “creates or develops” content “by
making a material contribution to its creation or development”
is not afforded section 230 immunity, however. This includes
not only just augmenting the content generally, but materially
contributing to the alleged unlawfulness of the content.
Thus, immunity is lost when a website contributes to the
illegality of the third-party content.
The plaintiffs argued that Meta should not be entitled to
Section 230 immunity due to its alleged solicitation and
encouragement of advertising on its site by third parties which it
knows, or should know, are scammers, and due to the fact that it
fails to remove fraudulent ads and enforce its advertising
policies.
Granting Meta’s motion to dismiss, the Northern District of
California found that immunity should extend to Meta because the
Plaintiffs’ claims stem only from Meta’s role as a
publisher. The court held that the Plaintiffs allegations did not
sufficiently allege that Meta materially contributed to the
illegality of the advertisements in question. The court
explained, “Plaintiffs do not plead that Meta required
advertisers to post specific content, made suggestions about the
content of the ads, or played a role in creating the unlawful ads.
Nor do Plaintiffs allege that Meta directly participated in the
allegedly fraudulent purchase transactions, which took place on
third party websites.”
The court also held that Meta did not lose its Section 230
immunity by allegedly failing to remove fraudulent ads and enforce
its advertising policies. The court wrote, “numerous
courts have rejected the argument that an interactive service
provider loses Section 230 immunity if it fails to adequately
enforce its ad policies.”
The court granted the Plaintiffs leave to amend the complaint,
acknowledging that it is possible that the Plaintiffs could allege
that “Meta’s conduct goes beyond mere publication.”
The court explained that if the Plaintiffs could establish
that Meta was involved in “creating or developing the
allegedly illegal ad content,” then Section 230 immunity might
not apply.
Calise v. Meta Platforms, 2022 WL 1240860 (N.D. Cal.
2022).
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