A California Superior Court’s recent ruling in Murphy v. Twitter held that Section 230 of the Communications Decency Act shielded Twitter from liability for suspending and banning a user’s account for violating the platform’s policies. As we have previously noted, Section 230 has come under pressure in recent years from both courts and legislatures. But we have also examined other cases demonstrating Section 230’s staying power. The ruling in Murphy again shows that, despite the challenges facing Section 230, the statute continues to serve its broader purpose of protecting social media platforms from the actions of their users while allowing those platforms to monitor and moderate their services.

From January to mid-October 2018, Meghan Murphy posted a number of tweets that misgendered and criticized transgender Twitter users. After first temporarily suspending her account, Twitter ultimately banned her from the platform for violating its Hateful Conduct Policy. Twitter had amended this policy in late October 2018 to specifically include targeted abuse and misgendering of transgender people.

Murphy filed suit against Twitter for breach of contract, promissory estoppel, and unfair competition in violation of California law. She alleged, among other things, that Twitter had changed its Hateful Conduct Policy without notice and retroactively applied it to her, and that Twitter had falsely advertised itself as not monitoring or censoring user content when in fact it did. She sought injunctions to prevent Twitter from enforcing the rule against misgendering and to restore access to all accounts that had violated the policy.

Twitter filed both a motion to strike the complaint under the California anti-SLAPP statute, as well as a demurrer (essentially a motion to dismiss). The court disposed of the motion to strike because it found that Murphy’s suit sought only injunctive and declaratory relief that would benefit other Twitter users who were similarly situated to her (as opposed to monetary damages that would confer a greater benefit on her). Because this qualifies as an action brought in the public interest, the court found it was exempt from the anti-SLAPP statute and denied the motion.

However, the court sustained Twitter’s demurrer, dismissing Murphy’s entire suit by holding it was barred under Section 230.

Was Twitter acting as a publisher?

Section 230(c)(1) states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The court found it was already well-established that Twitter is a provider of an interactive computer service, citing Pennie v. Twitter, Inc. and Fields v. Twitter, Inc.

The key issue was whether Twitter was acting in its capacity as a publisher when it suspended and then banned Murphy’s account. The court found that it was, and found this determination dispositive in holding that Twitter’s actions qualified for Section 230 protection.

First, the court found that the classification of a service as a “publisher” does not depend on whether that service chooses to take down content or to actively post content. Citing a series of California and federal cases (including Barrett v. Rosenthal and Cross v. Facebook, Inc.), the court identified a growing line of precedent that found no distinction between withdrawal and posting of content under Section 230. Both are considered publishing activity.

Second, the court specifically addressed the question of whether suspensions or deletions of users’ accounts are considered publishing activity under Section 230. The court cited Fields, Riggs v. MySpace, Inc., Cohen v. Facebook, Inc., and Mezey v. Twitter, Inc., finding that courts have routinely found Section 230 protects platforms’ choices regarding suspension or deletion of accounts.

Finally, Murphy argued that her claims for breach of contract and promissory estoppel were outside the scope of Section 230 because they sought to hold Twitter liable for breaching its contractual promises to her as stated in its policies, rather than for anything it did as a publisher. However, the court found that Twitter allegedly violated its contractual duties to Murphy only because of actions it undertook as a publisher (suspending and banning Murphy’s accounts). Because her claims sought to hold Twitter liable specifically for these actions, which, as discussed above, were those of a publisher, the suit was still barred.

Distinguishing from Demetriades

The court rejected Murphy’s argument that her suit was like Demetriades v. Yelp, Inc., a case in which the plaintiff had sued to prevent Yelp from making public statements about the quality of its reviews (namely, that its “filter” for unreliable reviews was highly effective and that it had “the most trusted reviews”). The court in Demetriades found that Section 230 did not bar the plaintiff’s suit because it sought to hold Yelp liable for its own public-facing statements, rather than for any statements made by third-party Yelp reviewers.

The court concluded that Murphy’s claims, in contrast, sought to hold Twitter liable for the application of its Hateful Conduct Policy in suspending and banning her. At no point did she allege a cause of action purely related to Twitter’s public or user-facing statements. Because her claims were related to Twitter’s publishing activity, they remained susceptible to the protection of Section 230.

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The court’s ruling in Murphy represents another win for providers of social media platforms. It also further clarifies that, at this time, publishing activity encompasses social media platforms’ decisions to suspend or ban certain users. We will continue to post regular updates here on Socially Aware regarding new developments in this evolving area of the law.