On this blog, I typically write about frivolous or ill-considered lawsuits. In the long, long ago, before I came to law school, I wrote about video games. So imagine my unbridled joy upon reading that Jack Thompson (think: King Richard I of the Anti-Video Game Crusade) filed a pointless, dead-end lawsuit against Facebook. Let the Games Begin!
Jack Thompson made a name for himself as an anti-video game activist. You might remember Thompson from his numerous sound bites made in the immediate aftermath of school shootings, blaming video games for mass murder (and coining the term Pixelante in the process). Thompson’s more colorful claims about video games (e.g., that games are “mental masturbation” and are “[m]urder simulators . . . [,] not constitutionally protected speech”) as well as his vocal support for game bans, have angered the wider game playing community.
In response to his crusade, many individuals have found creative ways to express their hatred of Thompson. (Check out some of the more interesting depictions of this ire). Thompson has sent many a cease-and-desist letter to have these works pulled. But some individuals have gone too far, using Facebook to advocate violence against the one-man litigation machine: “I will pay $50 to anyone who punches Jack Thompson in the face.”
Thompson faxed (really . . . faxed) a C&D to Facebook to have these groups pulled, but the company did not immediately react (probably because Thompson did not follow the normal, sane, much more effective route of clicking on the “Report Group” link to, you know, report the group*). Due to Facebook’s inaction, Thompson did what anyone would do, and sued Facebook for $120 million dollars, claiming intentional and negligent infliction of emotional distress, and negligent supervision.
Where to begin with this one . . .
Right off the bat, Facebook is not liable for the content of third-party posters. Section 230 of the Communications Decency Act (“Section 230”) states that “[n]o 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.” Facebook is therefore immune from these types of actions. It doesn’t matter if Facebook didn’t immediately pull down the group, as it was under no legal obligation to do so. Nor does it matter, as Thompson points to in his brief, that Facebook has been more vigilant in taking down groups threatening the President’s life. One of the main points of Section 230 is to allow providers to remove some content without facing liability for the content they chose not to take down.
According to Gamepolitics.com, Thompson believes that Facebook’s Terms of Service prohibiting threatening posts expose the company to liability outside of Section 230. "Facebook, by its actions, has admitted that it was violating its own 'Terms of Use' by allowing terrorist postings (which company standards trump the federal Decency Act, unbeknownst to digital experts the media interviewed about Thompson’s lawsuit about Facebook)."
However, this line of attack also fails. Barnes v. Yahoo clarified that, barring an explicit promise from the company to the complainant, the terms of service of a provider do not jeopardize Section 230 immunity. Perhaps, if a Facebook employee had contacted Thompson and promised to remove the groups, then there would be grounds for promissory estoppel. But Thompson notes repeatedly in his complaint that Facebook made no such guarantees.
Second, Thompson’s claims of emotional distress are anemic. In Florida, Intentional infliction of emotional is exceptionally difficult to prove:
[T]he Plaintiffs must show: “(1) the wrongdoer's conduct was intentional or reckless; (2) the conduct was outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe.” . . . Florida has established a very high standard for claims of intentional infliction of emotional distress, and only in extreme circumstances will courts uphold such claims. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Estate of Duckett v. CNN, No. 5:06-cv-444-Oc-10GRJ, 36 Med.L.Rptr. 2210 (2008)
Indeed, the only interesting part of Thompson’s suit is whether a Florida court would weaken the impact rule, which typically requires a plaintiff charging negligent infliction of emotional distress to show physical harm. But that question will not need to be discussed, as Facebook will surely receive a dismissal based on Section 230 immunity.
Third, I’m assuming that the last count was just thrown in for laughs, because Facebook has no duty to protect Thompson. A duty to protect arises from innate status (a mother to a child) or a recognized relationship (doctor to patient, teacher to student). See e.g., Roberson v. Duval County School Bd., 618 So.2d 360, 362 (Fla. 1st DCA 1993). Surely, Facebook has not entered into such a relationship with Thompson. Under Thompson’s theory, any building owner would be liable for defamatory graffiti (“As a building owner, you had a duty to immediately remove the phrase ‘Andrew is a n00b’ from your bathroom stall; as damages I seek $40 million dollars”).
So, to sum up, Thompson’s case is dead-on-arrival, and the problem could have been (and indeed was) solved with a few mouse clicks. To put it into more gamer friendly terms, the law is about to do to Thompson as Daigo did to Justin at EVO 2004.
* Thankfully, our friends at Gamepolitics.com did not eschew the "report group" option and kindly had the group taken down within a day.
(Andrew Moshirnia is a second year law student at Harvard Law School and a CMLP blogger. He chose this topic just so that he could embed a Street Fighter EVO video. The original draft of this post was chock-full of game related memes, including C-C-C-Combo Breaker.)
