Home Civil Law Facebook Defeats Lawsuit Over Alleged ‘Shadowbanning’-De Souza Millan v. Facebook – Technology...

Facebook Defeats Lawsuit Over Alleged ‘Shadowbanning’-De Souza Millan v. Facebook – Technology & Marketing Law Blog


The time period “shadowbanning” doesn’t have a single well-accepted definition. In my Content Moderation Remedies paper, I say: “A shadowban keeps a user’s account active, but only the accountholder can see the content.” However, others typically use the time period as a generic descriptor of undisclosed visibility discount steps, reminiscent of eradicating an accountholder’s objects from inside search indexes.

I can’t say for positive that “shadowbanning” precisely describes what occurred to the plaintiff, however shut sufficient. He had a number of Facebook accounts. He posted from one account, however the merchandise didn’t seem when he appeared for the merchandise by way of a unique account. He claimed that “Facebook was trying to deceive him into thinking he had posted a publicly visible comment, when in fact the comment was not visible.” Unsurprisingly, his professional se lawsuit goes nowhere.

Section 230(b). Section 230(b) comprises a collection of coverage statements from Congress contextualizing Section 230. The courtroom says: “The plain language of the statute shows that these are merely expressions of Congressional policy. These policies are not substantive provisions that provide a basis for liability, nor do they create a private right of action.” It’s attention-grabbing to see litigants making an attempt to create substantive rights out of Section 230(b)’s coverage statements–I simply blogged about another attempted misuse of 230(b).

Section 230(c)(2)(A). Another misguided try to weaponize language that doesn’t help a explanation for motion: “this provision provides an immunity, so even if Facebook acted discriminatorily, at most that would deprive it of the immunity that the statute provides.”

Section 2000a(a) of the Civil Rights Act (42 USC 1981). “Millan alleges in his amended complaint that Facebook discriminated against him by blocking his post because it wanted to stop him from selling his services. Putting aside the question of whether Facebook constitutes a ‘public accommodation,’ the statute does not prohibit businesses from discriminating on this basis.” Another instance of a plaintiff weaponizing civil rights legal guidelines to advance objectives fully unrelated to the purpose of defending minorities.

47 USC 202. This legislation applies to “common carriers,” so in fact it doesn’t apply to Facebook. The courtroom says the plaintiff “does not allege that Facebook transmits these signals from their point of origin to their point of reception. Indeed, such allegations would be contrary to the general operation of the Internet, in which some companies create digital content and others own and operate the wires and other infrastructure that transmits the digital content to users.” Hello, layers of the telecom stack! Furthermore, the courtroom says Facebook certified as an “information service” within the “info/telecom services” divide.

ECPA. The plaintiff “voluntarily provided the comment to Facebook in the expectation that Facebook would display it publicly. Millan does not explain how the statute can be construed to prohibit this.”

18 USC 1343. This is an anti-fraud prison statute with no non-public proper of motion.

It’s straightforward to snort on the plaintiff’s futility right here, however I’m not laughing in any respect. This is the form of lawsuit we will count on to see often when Congress creates extra bases for plaintiffs to sue over content material moderation selections. The impending tsunami of lawsuits pose an existential risk to the Internet as we all know it, each as a result of their protection prices and the countermoves Internet providers will make to scale back these protection prices. Congress ought to be preventing in opposition to that final result. Instead, Congress will lean into it.

Case quotation: Rodrigo de Souza Millan v. Facebook, Inc., 2021 WL 1149937 (Cal. App. Ct. March 25, 2021)


Please enter your comment!
Please enter your name here