Again? Another plaintiff ignores Section 230 of the CDA and sues a website over user generated content

SUNY Albany freshman Denise Finkel is suing four former high school classmates, their parents, and Facebook, Inc. over the allegedly defamatory content contained in a private Facebook group the classmates had set up. (Finkel v. Facebook, Inc., 102578-09 (N.Y. Supreme Ct. complaint filed Feb. 24, 2009).)

The Facegroup, titled “90 Cents Short of a Dollar,” contained content that Finkel, in her complaint filed in New York State Supreme Court in Manhattan, claimed was understood to mean that she “was a woman of dubious morals, dubious sexual character, having engaged in bestiality, an “I V drug user” as well as having contracted the H.I.V. virus and AIDS.” (Finkel Compl. ¶ 23). Finkel claimed that defendant Facebook had published this content with “actual malice and with the intent to injure the plaintiff.” (Finkel Compl. ¶ 32).

Under the Communications Decency Act of 1996, Section 230, Facebook is immune from liability for online content precisely of this nature.

This standard has endured in the age of Web 2.0, where websites have increasingly invited users to interact with each other and to generate content.

The craigslist case
In 2008 the Seventh Circuit Court of Appeals affirmed the lower court’s holding that under Section 230, the website was immune from liability for user generated content that the plaintiff, Chicago Lawyers’ Committee For Civil Rights Under Law, claimed violated the Fair Housing Act (e.g. several housing advertisements posted by craigslist users were found to contain requirements such as “no minorities” and “no children”.) (Chicago Lawyers’ Committee For Civil Rights Under Law, Inc. v. Craigslist, Inc. 519 F.3d 666).

Similar to craigslist, Facebook serves as a forum for third party users to post all sorts of content, from the profound to the profane. While Finkel claims in her suit that Facebook should be liable for defamation because the website “should have known that such statements were false and/or have taken steps to verify the genuineness of the [statements]” (Finkel Compl. ¶ 28); Section 230’s immunity protects websites that invite users to generate content from having to do precisely what Finkel claims Facebook should have done—that is, review and vet thousands of instances of user generated contents for potential illegalities. As Judge Frank Easterbrook explained in the craigslist opinion, “[a]n online service could hire a staff to vet the postings, but that would be expensive and may well be futile: if postings had to be reviewed before being put online, long delay could make the service much less useful.”

What are Finkel’s chances of winning?
Finkel’s claim against Facebook is, in the words of Eric Goldman, “unquestionably DOA.”

Finkel may be more successful in her defamation suit against her four former classmates. However, as Goldman notes, it is unlikely that Finkel will recover the full 3 million dollars in damages that she demands. As Goldman explains,

[T]here were only 6 group members listed on the exhibit, which means the total universe of listeners for any defamatory statement was 5 other folks (the person posting the statement doesn’t count). This may severely circumscribe any damages. Third, given that this group of 6 presumably represented a social clique with its own norms and mores, it’s entirely possible that the small universe of readers completely understood that superficially factual statement weren’t really factual and were never intended to be.

It could be argued that given the context, these school yard taunts published online are not as damaging as Finkel claims.