Key Points

  • The Ninth Circuit affirmed dismissal of Shared Partnership's conversion claim against Meta over the October 2020 cancellation of Shared's Facebook pages, holding the claim barred by Section 230.
  • The court held that removing content and barring someone from posting ads is a quintessential editorial decision, regardless of the label on the cause of action.
  • A promise in a platform's terms of service that only restates its inherent publishing authority is publishing activity protected by Section 230, and it does not trigger the contract exception recognized in Calise v. Meta Platforms.
  • The panel distinguished Barnes v. Yahoo! and Calise, where the promises at issue were a specific undertaking to one user and a business commitment to combat scam ads.
  • Courts must assess the core theory of a complaint to decide whether a contract-framed claim treats a platform as a publisher.

A federal appeals court ruled on Oct. 30 that Section 230 bars a content company's conversion claim against Meta Platforms Inc. over the shutdown of its Facebook pages. The court held that a claim built on promises in Facebook's terms of service still targeted an editorial decision protected by Section 230 of the Communications Decency Act. That law shields an internet provider from liability when it acts as a "publisher or speaker" of content supplied by others.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of a conversion claim brought by Shared Partnership, a Canadian-based company whose Facebook pages Meta canceled in October 2020. Judge Kenneth K. Lee wrote the published opinion for a panel that also included Judges Salvador Mendoza, Jr. and Ana de Alba. "The mere existence of a contractual duty is not a talismanic Section 230 loophole," Lee wrote.

The ruling sets limits on Calise v. Meta Platforms, a 2024 Ninth Circuit decision holding that Section 230 does not cover certain contract-based claims separate from a platform's publishing activity. The panel held that a promise in a platform's terms that merely restates its power to decide what stays online is itself publishing activity.

Shared describes itself as a company that "creates and publishes original, timely, and entertaining [online] content." Lee called it "an online content creator that specializes in sensationalistic materials." For more than a decade it used several Facebook pages and Meta's self-serve advertising service, and at one point it had about 25 million Facebook followers. According to the opinion, Shared's own employees acknowledged that the company regularly relied on "scammy" ads and "blatant clickbait."

Shared submitted more than 500,000 ads to Meta over the years, and Meta rejected more than 18,000, citing reasons such as sensational or adult content. One rejected ad paired images of wrecked cars and the actor Luke Wilson with a reference to a "horrific scene" involving a "fatal car crash." Facebook told Shared it does not allow ads with "shocking or sensational content."

Shared's chief executive, Jordan Nabigon, said the company expected "customized" explanations for every rejected ad. In October 2020, Meta canceled Shared's pages for repeatedly violating its terms and policies.

Shared then sued Meta in the U.S. District Court for the Northern District of California. Among its claims were conversion and fraudulent inducement, and it called the shutdown a business "death sentence." The conversion claim rested on Shared's assertion that it held an exclusive property right in its Facebook pages. The district court, with U.S. District Judge Richard Seeborg presiding, dismissed that claim under Section 230, and Shared appealed.

Under Ninth Circuit precedent, Section 230 requires dismissal when the defendant provides an interactive computer service, the plaintiff seeks to treat it as a publisher or speaker, and the information at issue came from someone else. Shared contested only the second element. It argued that California conversion law imposed on Meta a "duty to not interfere with Shared's property right" in the pages.

The panel rejected that argument, citing the court's 2009 decision in Barnes v. Yahoo! for the principle that "what matters is not the name of the cause of action." Lee pointed out that Shared's complaint sought to hold Meta liable for "unpublishing the Shared Pages within Facebook." He wrote: "Such a decision to remove content and prevent someone from posting advertisements is a quintessential editorial decision protected under Section 230."

On appeal, Shared recast its theory as a contract claim. It argued that Meta had promised not to remove it unless Shared "clearly, seriously, or repeatedly" breached the platform's terms or policies, which Shared said it had not done. The panel doubted the contract existed as claimed. "It appears that this provision gives Meta unilateral authority to determine whether a business has breached the Community Standards," Lee wrote. He added that Shared's complaint cited no term Meta had broken and no promise Meta had made.

Even assuming Shared had an enforceable contractual right, the panel held, the claim still failed. "The Terms of Service just restate Meta's ability to exercise editorial discretion," Lee wrote. In his account, a contractual promise like this one "that reiterates the company's inherent publishing authority still amounts to publishing activity protected by Section 230." The opinion said it "makes little sense" to strip Meta of the defense "simply because Facebook articulated its discretion as a publisher in its Terms of Service."

The panel contrasted Barnes and Calise, in which the Ninth Circuit had carved out certain contract-based claims from Section 230 protection. In Barnes, Yahoo had expressly promised a specific user to remove naked photos posted by her former boyfriend and then failed to do so. In Calise, people scammed by Facebook advertisers alleged that Meta had promised in its terms of service to "[c]ombat harmful conduct," including fraud. That promise, Lee wrote, "does not sound in editorial discretion but rather represents a business commitment to smoke out scammers."

A claim does not escape Section 230 just because it is framed as a breach of contract, the panel held. Instead, courts must decide whether the claim treats the platform as a publisher, a task that may include "assessing the core theory of the complaint." Applying that test, Lee concluded: "Shared's claim hinges on Meta's publishing authority, despite being dressed up in contractual garb."

Cook Alciati of Gardella Alciati argued for Shared. Eric A. Shumsky of Orrick Herrington & Sutcliffe LLP argued for Meta.

The appeal concerned only the conversion claim, and the panel affirmed its dismissal. The opinion does not address Shared's fraudulent inducement claim. The case is Shared Partnership v. Meta Platforms, Inc., No. 25-2612.