United States: New California Court Decisions Showcase Robust CDA Immunity

Three recent court decisions reaffirm the expansive immunity awarded to online providers that host third-party content under Section 230 of the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c): California's Superior Court decision in Murphy v. Twitter, Inc., No. CGC-19-573712 (Cal. Super. June 12, 2019), and the Northern District of California's decisions Brittain v. Twitter, Inc., No. 19-00114 (N.D. Cal. June 10, 2019), and Fyk v. Facebook, Inc., No. 18-05159 (N.D. Cal. June 18, 2019).

In Murphy, the plaintiff was a self-described "feminist writer and journalist" residing in Canada. After repeatedly referring to a transgendered female as a male in her tweets, Twitter suspended her account for intentional "misgendering," which is a violation of Twitter's Hateful Conduct Policy. Following a series of exchanges, Twitter permanently banned Murphy. Murphy then sued Twitter in a putative class action for breach of contract, false advertising and violating unfair competition laws. Murphy requested injunctive relief prohibiting Twitter from, among other things, suspending users for violating its "misgendering" rule. Murphy claimed that in banning her, Twitter failed to provide her with adequate notice of their Hateful Conduct Policy change and engaged in "viewpoint discrimination." Twitter responded with an anti-SLAPP motion to strike (which is procedurally important but beyond the scope of this blog post) and a demurrer to dismiss the complaint based on the CDA.

Generally, for a provider to receive immunity under the CDA, three conditions must be met: (1) the provider is a "provider or user of an interactive computer service;" (2) the information which the plaintiff seeks to hold the provider liable is "information provided by another information content provider;" and 3) the plaintiff's claim seeks to hold the provider liable as the "publisher or speaker" of that information. In Murphy, the court granted the demurrer, reasoning that Twitter satisfied these three conditions. Central to the court's decision was the fact that Murphy sought to impose liability on Twitter in its capacity as a publisher when it suspended or banned accounts. Citing the California Supreme Court's Barrett case as controlling precedent, the court stated that the CDA "forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions." The court rejected the plaintiff's attempt to circumvent the CDA by alleging that she was merely seeking to hold Twitter liable for marketing statements or quasi-contractual promises, holding that plaintiff's claims were based on her own content and sought to compel Twitter to restore her account and refrain from enforcing its content policy against her, claims barred by the CDA.

Twitter is no stranger to staying on the right side of §230(c) immunity−it prevailed in a similar lawsuit in early June. In Brittain, an individual plaintiff brought an action against Twitter for terminating four accounts (and losing followers) and allegedly suppressing right-wing viewpoints. The plaintiff alleged eight causes of action against Twitter for the account terminations: a violation of the First amendment, a violation of federal election and antitrust law, breach of contract, conversion, and various other state law claims. Twitter moved to dismiss on multiple grounds, including that section 230(c)(1) of the CDA renders it immune from liability for each of Brittain's claims that seek to treat it as a publisher of third-party content. The court found that each of Brittain's claims against Twitter, except for his antitrust violation claim, attempted to treat Twitter as a publisher in their actions to terminate the accounts.

Regarding the antitrust violation claim, the court found that the plaintiff Brittain lacked standing because he failed to show the type of injury the antitrust laws were intended to prevent. Additionally the court found that at most Brittain's allegations support a contention that Twitter and others in the market have engaged in conscious parallelism, which it ruled was not actionable by law. While this case is a win for Twitter, ultimately, the court afforded the plaintiff leave to amend his antitrust claim.

Twitter is not the only online provider to enjoy immunity under 230(c) this month. In a similar lawsuit, Facebook received immunity against claims related to blocking third-party content on its platform, further illustrating the breadth of protection 230(c) provides.

In Fyk, the plaintiff filed suit alleging various tort and state law claims after Facebook blocked the plaintiff's content which included photos and videos of people urinating. Facebook moved to dismiss on two bases, principally, on CDA grounds. Ruling in a relatively straightforward application of CDA immunity, the court held that because the CDA bars all claims that seek to hold an interactive computer service liable as a publisher of third party content, the CDA precluded all of the plaintiff's claims ("[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230"). Unlike in Brittain, the plaintiff in Fyk was not allowed to amend any parts of his complaint.

The steady drumbeat of CDA cases continues to emphasize the breadth of actions considered to be "publisher" activity under the CDA. They also highlight the failure of arguments structured to operate as CDA "work-arounds," that is, arguments structured to bypass the immunities of the CDA by characterizing actions by providers in a manner that falls outside the protected activities of the CDA.

New California Court Decisions Showcase Robust CDA Immunity

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions