An Internet website that allows third parties to post messages, like Facebook, is a public forum. The website owner can satisfy its burden on the first step of analysis of an Anti-SLAPP motion by showing that the gravamen of the suit is the content of postings that concern an issue of public concern. Here, Facebook did so by showing that the accused postings concerned two serious traffic accidents caused by plaintiff’s sleep-deprived truck drivers. Accidents from sleepy truck drivers are a matter of public concern. Plaintiff could not avoid that conclusion by trying to re-characterize its claims as being based on Facebook’s refusal to remove the offending postings as supposedly promised in its terms and conditions of service, which gave Facebook discretion, but no obligation, to remove offensive material. The Communications Decency Act (47 U.S.C. § 230) barred plaintiff’s claims for breach of contract, negligent misrepresentation and negligent interference with economic relations. The CDA immunizes interactive computer service providers from liability for content published by third parties using their services. The CDA has been held to bar claims based on the service provider’s failure or refusal to remove offensive material. Three other claims based on the common law right of publicity, Civ. Code 3344 and a derivative 17200 claim had no chance of success since plaintiff could not show that Facebook used his identity for its advantage. At most, it simply ran unconnected advertising on pages displaying third parties’ critiques of plaintiff.
California Court of Appeal, First District, Division 2 (Richman, J.); August 9, 2017; 2017 WL 3404767