March 2, 2021

Facebook Files Anti-SLAPP Motion Against Defunct App Developer Who Sued Over Revamp Of Facebook’s App Platform

Back at the end of 2018, a defunct Swedish app developer sued Facebook for the changes the company made to its app platform. As detailed by Cyrus Farivar (then at Ars Technica), it appeared that the lawsuit was somehow connected to the more high profile case filed by the developer of a sketchy bikini-spotting app, “Pikini,” Six4Three. At issue was that after Facebook realized that various apps were abusing the access the Facebook platform gave them to suck up data (a la Cambridge Analytica), Facebook drastically scaled back the platform and changed overall directions. Six4Three is fighting to argue that somehow Facebook owed it to developers to keep its platform open.

This other company, Styleform IT, seemed to jump on board with a lawsuit that had some striking similarities to the Six4Three suit — including sharing some of the same lawyers. Either way, Farivar alerts us to the latest in the case, which is that Facebook has filed an anti-SLAPP claim against Styleform IT, arguing that its attempt to sue Facebook and Mark Zuckerberg over the company’s moderation choices violate, first, Section 230 of the Communications Decency Act, which allows for Facebook to choose to moderate its platform however it wishes, and that the lawsuit itself is predicated on a 1st Amendment-violating effort to stifle Facebook’s expressive decisions.

This case is an attack on Defendants’ Facebook, Inc.’s and Mark Zuckerberg’s free speech rights
and should be stricken pursuant to the anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16. Defendants bring
this motion because Plaintiff Styleform IT’s claims in the First Amended Complaint (“FAC”) all turn on
one constitutionally protected decision: Facebook’s editorial decision to stop publishing certain usergenerated
content to third party app developers via the Facebook Platform.

The fatal flaw is that Facebook, through its employees and executives including Mr. Zuckerberg,
has a right to make editorial decisions as to what third-party content to publish through its Platform. The
Facebook Platform is a free service available to third-party app developers through which developers could
ask Facebook users who downloaded their app for consent to access content the user shared or could view
on Facebook, including content shared with the user by their friends, which Facebook would then publish
to developers (through APIs), consistent with the user’s privacy settings. Defendants made—and need to
be free to continue to make—decisions about what third-party content Facebook publishes through the
Platform to protect users’ privacy and experience on the Platform. These decisions fall squarely within the
anti-SLAPP statute because they are based on Defendants’ conduct in furtherance of their constitutional
right to free speech on issues of public concern. Specifically, the eight causes of action asserted against
Defendants challenge editorial decisions about the third-party content Defendants publish to third-party
app developers through its Platform. In a digital world, this is precisely the sort of editorial decision that
courts regularly protect under the anti-SLAPP statute.

The filing notes that the overall case was put on hold for nearly a year after Styleform IT’s original lawyers (those associated with Six4Three) withdrew from the case. Late last year, the company finally obtained new lawyers and the case is back on. As the filing notes, the case seems to pretty clearly merit an anti-SLAPP filing, as its entire purpose is an attempt to force Facebook to change its editorial practices.

Defendants’ decision to de-publish certain categories of content created by its users was an exercise
of editorial discretion taken in furtherance of its constitutional right to free speech, and each of Styleform’s
claims arises from that exercise of editorial discretion.

Lawsuits that target a platform operator’s editorial discretion in the maintenance of its forum are
indisputably “based on conduct in furtherance of free speech rights [on matters of public concern] and must
withstand scrutiny under California’s anti-SLAPP statute.”

It seems pretty straightforward that Facebook is correct about this, and Styleform IT probably should lose on anti-SLAPP grounds (and Section 230 grounds, for that matter).

However, given just how much general hatred there is of Facebook right now, and the knee-jerk reaction that many have to assume that Facebook must always be on the wrong side of any legal dispute — I wonder if people will freak out about this particular filing. However, remember that the reason that Facebook made such significant changes to its platform was because of serious concerns with how the original platform could be used to reveal private info about Facebook users. The whole thing put Facebook in a no win situation. Closing that platform meant pissing off developers who relied on it. Leaving it open meant risking more privacy breaches. Given that situation, it seems pretty clear that Facebook’s decision was the much more sensible one here, even if it upset a few developers (whose own apps seemed pretty limited in usefulness anyway).
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