California court decision strengthens Facebook’s ability to deplatform its users

Plaintiff used Facebook to advertise his business. Facebook kicked him off and would not let him advertise, based on alleged violations of Facebook’s Terms of Service. Plaintiff sued for breach of contract. The lower court dismissed the case so plaintiff sought review with the California appellate court. That court affirmed the dismissal.

The Terms of Service authorized the company to unilaterally “suspend or permanently disable access” to a user’s account if the company determined the user “clearly, seriously, or repeatedly breached” the company’s terms, policies, or community standards.

An ordinary reading of such a provision would lead one to think that Facebook would not be able to terminate an account unless certain conditions were met, namely, that there had been a clear, serious or repeated breach by the user. In other words, Facebook would be required to make such a finding before terminating the account.

But the court applied the provision much more broadly. So broadly, in fact, that one could say the notion of clear, serious, or repeated breach was irrelevant, superfluous language in the terms.

The court said: “Courts have held these terms impose no ‘affirmative obligations’ on the company.” Discussing a similar case involving Twitter’s terms of service, the court observed that platform was authorized to suspend or terminate accounts “for any or no reason.” Then the court noted that “[t]he same is true here.”

So, the court arrived at the conclusion that despite Facebook’s own terms – which would lead users to think that they wouldn’t be suspended unless there was a clear, serious or repeated breach – one can get deplatformed for any reason or no reason. The decision pretty much gives Facebook unmitigated free speech police powers.

Strachan v. Facebook, Inc., 2023 WL 8589937 (Cal. App. December 12, 2023)

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