Facebook Censorship Lawsuit Heads to Appeals Court

Facebook is facing another censorship showdown in court, based on a suit brought by the owner of a censored viral news page set to appear before the Ninth Circuit Court of Appeals this June.

The case is brought by Jason Fyk, who ran the viral page WTF News until it was shut down by Facebook in 2016. At the time of the page being removed, Fyk says it had 14 million fans on the platform.

Much as in other Big Tech censorship cases, Facebook has argued in court that Section 230 of the Communications Decency Act allows it wide purview to censor its users as and when it sees fit. The U.S. District Court for Northern California previously accepted Facebook’s arguments, which will now be reviewed by the Ninth Circuit Court of Appeals.

This case makes a different argument than other Section 230 cases in that it avoids a focus on subsection C(2), which permits tech platforms to engage in “good Samaritan” blocking and screening of “objectionable” content. Cases fought on this basis typically argue that content censored by Big Tech companies does not fit the law’s definition of “objectionable.”

Instead, the case focuses on subsection F(3) of the law, which concerns the definition of “information content provider.” The law defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”

In contrast to “interactive computer services,” “information content providers” are not protected by the liability shields of Section 230. Thus, Big Tech companies must prove that they are “interactive computer services” and not “information content providers” if they wish to be subject to the law’s protections, and thus retain their broad authority to censor users.

By engaging in preferential treatment towards certain types of content, including by funding content produced mainstream media organizations, Fyk’s case will argue that Facebook is “responsible, in whole or in part, for the creation or development of information provided through the Internet,” and thus an “information content provider” not subject to Section 230’s protections.

If the argument is successful, it will open up Big Tech companies to many other censorship cases, as they will no longer enjoy the liability protection that has enabled them to have similar lawsuits dismissed in the past.