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  • Sarah Anderson & Anna Trahan

Social Media Immunity Narrows

A recent opinion against Meta by the U.S. Ninth Circuit Court of Appeals may open the floodgates for lawsuits against similar social media platforms for failure to adhere to their own stated policies. Previously, social media platforms enjoyed broad immunity under Section 230(c)(1) of the Communications Decency Act (CDA) for offensive and unlawful content posted by users and third parties because the social media platforms were merely acting as “publishers.”


Passed in 1996, the intent of the CDA was two-fold: 1) protect online platforms from civil liability based on third-party content (protect freedom of speech); and 2) incentivize online platforms to remove content harmful to children.  After nearly 30 years of technological evolution, the expansive interpretation of immunity granted under Section 230 now protects online platforms from fault for (almost) any illicit activity on their platforms, with little accountability for failure to moderate such content as a “publisher.”


However, on June 4, 2024, the U.S. Ninth Circuit, which covers much of the U.S. west coast (including California, Arizona, Alaska, Hawaii, Oregon, Idaho, and Montana) found social media giant Meta open to liability for failing to protect its users from third-party advertisement fraud on its platforms.  The Ninth Circuit’s decision in Calise v. Meta Platforms held that Section 230(c)(1) of the CDA only shielded Meta from the plaintiff’s non-contract claims but did not provide immunity for plaintiff’s contract-related claims. The Calise plaintiff’s claims were brought after Meta allowed fraudulent third-party ads to appear on Facebook to the potential detriment of the users. The court found that Meta was not immune from liability for the breach of contract claims since they promised to moderate third-party ads in Meta’s publicly available Advertising Policy, which Meta keeps posted on its website.


By making the representation in its Advertising Policy, Meta’s obligation regarding protections against third-party advertisements became a contractual duty between Meta and its users, separate from its publisher status that is otherwise protected under the CDA. In its policies, Meta promises to “combat harmful conduct,” which includes removing any “content that purposefully deceives, willfully misrepresents or otherwise defrauds or exploits others for money or property.”


The court found Meta without Section 230 immunity because it “manifested its intent to be legally obligated to ‘take appropriate action’ to combat scam advertisements, it became bound by a contractual duty separate from its status as a publisher.” In short, Meta’s contractual language in its Advertising Policy undercut their own publishing immunity under Section 230.


Just last year, the same court came to a different opinion with a similar dispute in Ynfante v. Google. In Ynfante, the Ninth Circuit determined Google immune from the plaintiff’s claims for negligence and false advertising under Section 230. There, the offending advertisement was published by a third-party, who then submitted the ad to Google for review and publishing. The court stated that Google did not “directly or materially contribute to what made the content itself unlawful,” and that Section 230 provides immunity from liability for the failure to edit or block user-generated content.  


Prior to the lawsuit, Google voluntarily provided a public statement stating that users “should feel confident that ads are not fraudulent or misleading.” Based on this statement, the plaintiff claimed that Google owed a duty to vet and verify advertisements for legitimacy. However, the court held that any duty of Google to vet and verify advertisements stems from Google’s role as a publisher. Alternatively, if harm resulted from the internet provider or social media’s failure to adhere other duties, such as contractual obligations, Section 230(c)(1) of the CDA would be inapplicable.


Distinguishing Ynfante from Calise, is the fact that Google paired its public statement about safety in advertisements with a blanket disclaimer that clearly negated any promises by Google that it would successfully identify and combat all fraudulent content on its platforms. Conversely, Meta made no such disclaimer in its Advertisement policy. Therefore, to maintain immunity for third-party content, users should expect all social media platforms to include more robust and obvious “blanket statements” disclaiming contractual obligations or other legally enforceable promises.

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