IP Law Daily, PUBLICITY RIGHTS—D. Del.: Meta denied immunity under CDA Section 230 for ads approved and maintained on Facebook, (Nov 20, 2024)

By Robert Margolis, J.D.

Court nonetheless grants Meta’s motion to dismiss former Governor Mike Huckabee’s claims concerning advertisements on Facebook falsely linking him to CBD products.

While Meta Platforms, Inc. is not immune from liability to former Arkansas Governor (and current nominee for U.S. Ambassador to Israel) Mike Huckabee for his claims alleging privacy rights violations arising from several advertisements appearing on Facebook and falsely linking him to CBD products, he nevertheless has failed to state claims under several state statutory and common law theories, the federal district court in Wilmington, Delaware has held. The court followed recent Third Circuit precedent in Anderson v. TikTok, Inc., 116 F.4th 180 (3d Cir. 2024), to hold that Section 230 of the Communications Decency Act does not provide immunity to Meta. However, the court found that Huckabee failed to allege all elements of each of his claims, which necessitated dismissal. Because the court did not “have any reason to believe” amendment would cure the identified defects in Huckabee’s complaint, the court dismissed the case with prejudice (Huckabee v. Meta Platforms, Inc., No. 1:24-cv-00773-GBW (D. Del. Nov. 18, 2024)).

Huckabee alleges that unidentified third parties have posted on Facebook three advertisements that use his name, photograph, and likeness without his authority, and falsely claim that he endorses, and/or was cured by, CBD products. He alleges Meta approved and maintained these advertisements on Facebook, and that its algorithms determine content to be sent to Facebook users such that Facebook is culpable for the damage he alleges the ads have caused.

Huckabee brought claims under Arkansas state law. He alleges (1) violation of the Arkansas Frank Broyles Publicity Protection Act (“FBPPA”), (2) common law invasion of privacy (appropriation), (3) common law invasion of privacy (false light), and (4) unjust enrichment. Meta moved to dismiss all claims.

No immunity. The court first rejected Meta’s argument that it is immune from liability under Section 230 of the Communications Decency Act. Section 230 provides, “No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). In addition, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with” Section 230. 47 U.S.C. § 230(E)(3). These provisions work together to provide immunity to defendants who can meet the statutory requirements. Courts in the Third Circuit apply three elements that a defendant must satisfy for Section 230 immunity to be conferred: (1) the defendant must be a provider or user of an interactive computer service, (2) the plaintiff must allege that the defendant is a publisher or speaker of information, and (3) the communication for which liability is sought must be information provided by another information content provider. The court found that Meta satisfied the first two elements but not the third.

Because Facebook is a provider of “an interactive computer service” under the statutory definition of that term—it “provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions (47 U.S.C. § 230(f)(2))—Meta established the first element for immunity. Meta also met the second element for immunity, because Huckabee’s complaint treats Meta as a publisher or speaker of the advertisements at issue in the case.

The third element failed, however, because it requires that the challenged communications be provided by “another information content provider,” which the court held was inapplicable to the claims against Meta. While the unidentified third parties who created the advertisements are unquestionably information content providers, under the recent Anderson v. TikTok decision, Meta also is an “information content provider.” The Third Circuit held that when TikTok’s algorithm decides what third-party content will be included in the content of its “for-you-page,” and then organizes and presents that content to users, those algorithmic decisions are “TikTok’s own expressive activit[ies], and thus its first-party speech.” 116 F.4th at 184 (cleaned up). Therefore, TikTok itself is considered an “information content provider,” and since immunity requires the communication be from “another” such provider, TikTok could not claim immunity.

In this case, Huckabee similarly alleged that Facebook’s algorithms make decisions as to which posts will appear on users’ newsfeeds. Under Anderson v. TikTok, these algorithmic decisions render Meta an “information content provider” and therefore not immune under Section 230. The court rejected Meta’s argument that Huckabee did not allege Meta created the advertisements at issue and only alleged that Meta approved, maintained, and hosted the advertisements. In fact, Huckabee dscribed how Facebook’s algorithms worked to make content decisions, which sufficed to plead that Meta is an information content provider. To the extent that the court in a prior decision in another case held that interactive computer services such as Meta can be immune under Section 230 so long as they do not contribute materially to the allegedly improper communication, the “materiality” question is one that could not be resolved on a motion to dismiss, and did not provide a basis for finding immunity based solely on the pleadings, the court held.

No scienter, malice. Though Meta did not succeed in obtaining dismissal of the claims on immunity grounds, the court held that Huckabee’s pleading of each claim was inadequate. Two of the claims, impose requirements that a defendant act with a particular mental state—scienter for the FBPPA claim, and malice for invasion of privacy (false light) claim. Huckabee’s allegations failed to allege the requisite mental state for either claim, the court held. His allegations that Meta sells advertisements and uses its algorithms to make those advertisements popular, that Huckabee is a celebrity, and Meta has in the past hosted scams (including involving a fake “FoxNews.com” link), did not establish that Meta had actual knowledge (or was aware of facts that could give it actual knowledge) of the particular advertisements at issue here. Therefore, he failed to allege the requisite scienter for the FBPPA claim.

While Huckabee alleged that “Meta approved and maintained these advertisements with actual malice,” the court found the allegation to be merely “conclusory” and therefore insufficient to sustain the invasion of privacy (false light) claim. The above-described allegations that were insufficient to establish scienter also did not support malice.

Appropriation claim. The court also dismissed Huckabee’s claim for invasion of privacy (appropriation), finding that it is preempted by the FBPPA. That statute provides that it is “the exclusive basis for asserting a claim for the unauthorized commercial use of the name, voice, signature, photograph, or likeness of an individual.” Ark. C. § 4-75-1111(a).

Unjust enrichment. Finally, because an unjust enrichment claim requires “fault” by the defendant, and allegations establishing that Meta is an information content provider do not equate with it being at fault, the court dismissed Huckabee’s claim. Meta merely chose to exercise its right to collect payment for hosting the advertisements, which is insufficient to establish it was at fault, the court held.

The Case is No. 1:24-cv-00773-GBW.

Judge: Williams, G.

Attorneys: Sean J. Bellew (Bellew LLC) for Mike Huckabee. Matthew D. Stachel (Wharton & Garrison LLP) for Meta Platforms, Inc.

Companies: Meta Platforms, Inc.

Cases: PublicityRights TechnologyInternet DelawareNews GCNNews