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ORIGINAL

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COOLEYLLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) MA ITHEW D. BROWN (196972) (brownmd@cooley.com) MEGAN L. DONOHUE (266147) (mdonohue@cooley.com) 101 California Street 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 Attorneys for Defendant FACEBOOK, INC.
B~OhnlM~~lcer~erk
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SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES

DAVID A. COHEN, a minor, by and through ROBIN S. COHEN as Guardian ad Litem; SHELBY A. ORLAND, a minor, by and through MARCIA 1. ORLAND as Guardian ad Litem; for all others similarly situated, Plaintiffs,

No. BC444482
SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES REGARDING IMMUNITY UNDER 47 U.S.C. § 230 IN SUPPORT OF DEFENDANT FACEBOOK, INC. 's DEMURRER TO PLAINTIFFS' COMPLAINT

FACEBOOK, INC., a Delaware Corporation, and DOES 1 through 100, Inclusive, Defendants.

Date: Time: Judge: Courtroom:

May 11,2011 8:30 a.m. Hon, Debre Katz Weintraub 47 Aug. 26, 2010 . Not set

BY FAX

Complaint Filed: Trial Date:

C'ootE:r LLP
AnOIlt,NEY;S AT LAW SA.N' FR"'NC~SCO

FACEBOOK, INC.'S SUPPLEMENTAL MPA IISIO DEMURRER -CASE

NO. BC444482

I.

INTRODUCTION

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At the hearing on Facebook's Court requested supplemental federal Communications

Demurrer to Plaintiffs'

Complaint

on March 17t

2011, the

briefing on two issues concerning

the. application

of § 230 of the

Decency Act ("CDA"),

47 U.S.c. § 230:
content provider" with respect to the disputed

1) Whether Facebook is an "information

activities as alleged in the Complaint.

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2) Whether a plaintiff (not a third party) can be deemed "another information

provider" for purposes of Facebook's (Dem. Hr'g Tr. immunity under § 230.

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content

2-4,Mar. 17,2011.)
content provider." As alleged in

Under established law, Facebook is not an "information the Complaint, information, provided preferences or product. Plaintiffs signed up for accounts, provided

their names and other background friend requests, sharing and their

in some cases uploaded profile pictures,

made and accepted

content

for their profile pages to share with their friends,

including

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and interests by "liking" content associated with a particular person, website, service, According to the Complaint, Plaintiffs' content, in accordance with their account with

settings, then was republished advertisements voluntarily related to

to their friends and in some cases may have been associated Plaintiffs' expressed preferences. Plaintiffs-not

Facebook-

created and shared the content at issue with their friends.

Facebook merely exercised Plaintiffs' content would of information

the traditional editorial function of determining be displayed. Under

whether, when, andhow

§ 230, Facebook

cannot

be held liable for publication

provided by Plaintiffs themselves. The CDA confers immunity on an interactive computer service provider like Facebook so long as it does not create or develop the content itself. Nothing in the CDA limits the scope of by a non-party to

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immunity to situations in which the content at issue was created or developed the litigation. The plain language of §

230 covers any person or entity other than the defendant

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itself, and several courts have treated a plaintiff as "another information content provider." Accordingly, Plaintiffs' Facebook qualifies for the broad immunity conferred by

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§ 230, and

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CooLl,YLLP
SAN FRANCISC

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Complaint should be dismissed with prejudice.

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FACEBOOK, INC!S SUPPLEMENTAL MPA IIS/O DEMURRER - CASE No. BC444482

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II.

ARGUMENT

A.

Facebook Is Not an "Information in the Complaint.

Content Provider" Under the Facts Alleged

Under § 230's plain language, Facebook is not liable for publishing information provided by Plaintiffs. Section 230 states: "[n]o provider or user of an interactive computer service shall

be treated as the publisher or speaker of any information

provided by another information contenl

provider."

47 U.S.C. § 230(c)(I) (emphasis added). There is no dispute that Facebook is an

"interactive computer service," which is defined as an entity that "provides or enables computer access by multiple users to a computer server .... " Id. § 230(f)(2). An "information content

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provider," by contrast, is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet ..... " Id. § 230(f)(3).
An interactive computer service does not become an information content provider merely

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because it plays an active role in selecting, editing, and placing information provided by others. Courts have held repeatedly that these functions fall within the "traditional role of 'publisher" and are covered by § 230. Barretl

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v: Rosenthal,

40 Cal. 4th 33,62 (2006); see also, e.g., Gentry

v. eBay, lnc., 99 Cal. App. 4th 816, 829-30 (2002) (websites have immunity for the "exercise of a publisher's traditional editorial functions-such as deciding whether to publish. withdraw,

postpone or alter content"); Phan v. Pham, 182 Cal. App. 4th 323, 327-28 (2010) (a website operator's "affirmative decision" to publish information provided by another is immune under § 230); Jurin v. Google, Inc., 695 F. Supp. 2d 1117, 1122 (E.D. Cal. 2010) (holding "[s]o long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the editing or selection process") (citation omitted). I Further, § 230 preempts "any State or local law that [seeks to impose liability] inconsistent with this section." Id. § 230(e)(3).

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I Whether a defendant is labeled a publisher, republisher, primary publisher, secondary publisher, . or distributor is of no consequence-all are encompassed by the statutory term "publisher." Barrett, 40 Cal. 4th at 39-40, 47-48, 53, 62.

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fKANCISC'

2.
FACEBOOK, INC.

'"00"'""1'

's SUPPLEMENTAL MPA I1S/O

DEMURRER

- CASE

No. BC444482

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Plaintiffs seek to hold Facebook liable for the publication of information provided by another information content provider-. here, Plaintiffs themselves. Plaintiffs allege that as

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Facebook users, they state that they "like" a particular person, website, or product and that Facebook displays this very same "like" statement next to an advertisement of the very same thing. (Campi.'
22 (alleging that Facebook displays statements such as "[your friend] Billy

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Smith likes this product" ...

''when [the user's] social interaction has indicated that they like a

particular web site, person, product or service" arid after the user "communicate[s] such 'likes' ... within the Facebook network").) Although Plaintiffs assert in their Opposition that Facebook creates the "advertisements" that are associated with Users' names and/or profile pictures (Opp'n at 10), Plaintiffs do not so allege in their Complaint-nor could they, because advertisers create

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their own .ads, Plaintiffs' "landing pages" also include information provided solely by them: their names and possibly a profile picture that each Plaintiff chose to publish? Plaintiffs-not Facebook-provided (CompI. ~ 20.) Thus,

each item at issue, including their "likes," names, and/or Because

profile pictures, specifically for the purpose of sharing that content with others.

Facebook was not "responsible, in whole or in part, for the creation or development of [the] information," Facebook is not an "information content provider" under § 230. See 47 U.S.C. § 230(f)(3). Facebook may have made certain editorial decisions about whether, how, when, and where on the website to publish Plaintiffs' content. But those decisions are at the core of a publisher's "traditional editorial function" and rest firmly within the broad immunity conferred by § 230, as recognized by recent cases. For example, in Goddard v, Google, Inc., 640 F. Supp. 2d 1193, 1197 (N.D. Cal. 2009), plaintiffs alleged that Google's Adwords program contributed to the illegality of the allegedly false advertising by suggesting words to advertisers that it knew would mislead users, thereby making Google an information content provider. The court dismissed the claims because the advertisers ultimately selected the content at issue, noting that "even if a particular tool 'facilitate[s] the expression of information,' it generally will be considered

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CooLEVLL
ATTORNEYS AT W

2 Facebook does not concede that any User under the age of eighteen is ever the subject of such "landing pages," but for purposes of the Demurrer, accepts the Complaint's allegations as true.

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.FACEBOOK, INC.'S SUPPLEMENTALMPA IfS/O DEMURRER-CASE

SAN

FR.Jr,N"SC

No. BC444482

e·
. 'neutral'· so long as users ultimately determine what content to post, such that the tool merely 2 3 4 5 6 7 8 9 0
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provides 'a framework that could be utilized for proper or improper purposes."

Id. (citing Fair

Housing Council of San Fernando Valley v. Roommates. com, LLC, 521 F.3d 1157 (9th Cir.
2008». Similarly, in Doe II v. MySpace, Inc., 175 Cal. App. 4th 561 (2009), the court upheld

immunity for a social networking website, despite allegations that MySpace became an information content provider when it "encouraged" the underage plaintiffs to post personal information later used by a sexual assailant. The court held that because the website's neutral tools simply permitted users to post information, but did not require them to do so, MySpace was not an information content provider. Id. at 574-75; see also Carafano v. Metrosplash.com, Inc., .339 F.3d 1119, 1124 (9th Cir. 2006) (dating website's classification of defamatory user-provided information was not "development" under § 230, when the information was provided by users in response to pre-populated questions that were not otherwise illegal); Gentry, 99 Cal. App. 4th at 834 (website's editorial role compiling false user-provided information did not make it an information content provider); Ramey v. Darkside Prods., Inc., No. 02-730 (OK), 2004. WL 5550485, at *7 (D.D.C. May 17, 2004) ("Defendant's minor alterations ... (printing its website address on every advertisement that it publishes on its website, placing a watermark on the photos used, and categorizing the advertisements. by subject matter) do not constitute 'creation or development. '''). Here, Facebook provides neutral tools that permit users to post information to the website, but it is Users who determine what information to post. Facebook is thus not an information content provider. Nothing in the Complaint supports the contention that Facebook went beyond traditional editorial functions on the website. In Roommates. com, the Ninth Circuit held that

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Roommates.com was not entitled to immunity under § 230 when it created mandatory questions requiring potential renters to provide their sex, family status, and sexual orientation-all impermissible subjects under the Fair Housing Act. Id. at 1164. Even though the website's users provided the answers to the questions, the website materially contributed to the alleged illegality-and became an information content provider itself with respect to that information-

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because the questions themselves required the illegal expression. See id. at 1172 (reaffirming 4.
FACEBOOK, INC.'S SUPPLEMENTAL MPA IIS/O DEMURRER - CASE No. BC444482

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prior holding in Carafano that a website providing neutral tools «that could be utilized for proper or improper purposes" is immune under § 230). Unlike in Roommates.com, it is Facebook's

Users who elect whether to upload a profile picture and/or to express that they like websites, .products or other content on Facebook. Such expressions are neither illegal nor required by

Facebook.· Similarly, it is Facebook's Users who select privacy settings that would permit the display of their names and profiles pictures on landing pages. Facebook thus merely provides the website functionality for the expression of this content and exercises a limited editorial role well within its function as a publisher. The court in Roommates.com emphasized the robust protections afforded to websites for

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their editorial roles, stating that § 230 immunity would not be lost where websites "merely augment[] content generally." Id. at 1167-68. The court also explained that mere "classification" of user information-for example when the dating website in Carafano organized user-provided not "transform [the website] into a 'developer' of the

information into a profile page-does 'underlying []infonnation.'"

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Id. at 1172. Concerned that its holding might be misconstrued to

diminish the broad protections intended by Congress under the CDA, the court underscored the importance of broad immunity for interactive websites: .Websitesare complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing web sites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged-or at least tacitly assented to-the illegality of third parties. .'. . [I]n cases of enhancement by implication or development by inference .... section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles." Id. at 1174-75 (emphasis in bold added; italics in original). Because the Complaint does not allege facts suggesting that Facebook did anything other than exercise the role of a publisher and editor of information provided by Plaintiffs, Facebook is immune from liability under § 230.

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FACEBOOK, INC.'S SUPPLEMENTAL MP A I/S/O DEMURRER - CASE NO. BC444482

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B.

Plaintiffs Can Be and Are "Another Information

Content Provider."

As for the Court's second question, there is no support for Plaintiffs' contention that § 230
immunity does not apply where it is the plaintiff who created the challenged content. Section 230

immunizes websites for publishing "information provided by another information content provider." 47 U.S.C. § 230(c)(I) (emphasis added). The word "another" refers to someone other

6 , than the defendant and,certainly does not require that the "other" provider be a third party to the 7 8 9 0 11 12 13 14 15 16 17 18 19 20
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lawsuit-a

construction that would create a nonsensical exception to § 230 immunity merely

because the creator of the content happened to be the one who filed 'a lawsuit. Congress used the term "another" because it recognized that interactive computer services may also be information content providers. See Barrett, 40 Cal. 4th at 60. Thus, "another" distinguishes the defendant interactive computer service from all others. No court has read the statutory language to impose a requirement that the content originate from a third party; rather, courts routinely have found § 230 immunity for claims based on a website's publication of information provided by plaintiffs themselves. See Doe v. MySpace,

Inc., 528 F.3d 413 (5th Cir. 2008); Doe IX v. MySpace, Inc., 629 F. Supp. 2d 663 (B.D. Tex.
2009); Doe II v. MySpace, Inc., 175 Cal. App. 4th 561 (2009). In all three cases, families of minors sued MySpace asserting claims based in part on information the minors had posted to the social networking website. The families alleged that MySpace's failure to prevent minors from communicating with sexual predators through the website led to sexual assaults on the minors;

See, e.g., Doe, 528 F.3d at 416. All three courts held that MySpace was entitled to immunity
under § 230 because plaintiff minors, not MySpace, were the information content providers. See id. at 420 (noting that in the hearing "before the district court, the Does admitted that Ju1ie [Doe] created the content .... "); Doe IX, 629 F. Supp. 2d at 665 (holding MySpace immune under the CDA for claims that it failed to employ safety measures to prevent Does from communicating with assailants); Doe II, 175 Cal. App. 4th at 573 (noting that "appellants seek to hold MySpace responsible for the communications between the Julie Does and their assailants"), These cases

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thus confirm the plain mandate of the statute: that interactive computer services such as Facebook

ATTORNEYS

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FACEBOOK, INC.'S SUPPLEMENTALMPA

SAN FR.ANCISC

US/O DEMURRER-CASE

No. BC444482

·.
1 2 3 4 cannot be held liable for information created and posted by "another" party, even when that other party is the plaintiff himself'

ITI.

CONCLUSION

For the foregoing reasons, in addition to those set forth in Facebook's

previous briefing,

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Facebook respectfully requests that the Court sustain its Demurrer with prejudice.

Dated: April 18, 2011

COOLEYLLP

9
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I
INC.

Attorneys for Defendant FACEBOOK,

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COOLEYLL

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Although some cases discuss § 230 immunity in the context of information provided by a "third party," see, e.g., Roommates.com, 521 F.3d at 1170-71, these cases do not-hold that only a "third party" qualifies as "another information content provider" under the statute. Rather, these cases use the term "third party" in the context of addressing the most typical § 230 fact pattem-a plaintiff suing a website for information posted by a third party. As discussed above, nothing in the statute limits the scope of § 230 immunity to that scenario.
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FACEBOOK, INC.'S SUPPLEMENTAL MPA US/O DEMURRER - CASE NO. BC444482

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