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Facebook Not Legally Liable For 'JerkingMan' Video Posted By One Of Its Users

from the when-I-think-about-you-I-represent-myself dept

Wed, Mar 16th 2016 10:36am — Tim Cushing

Franco Caraccioli, who sued Facebook rather than the party who uploaded a video of him pleasuring himself (under the username "Franco CaraccioliJerkingman"), has lost his lawsuit. This is due to his decision to pursue a party protected under Section 230, rather than the uploader, against whom he might have been able to pursue actual criminal charges.

Caraccioli's original complaint argued that Facebook's refusal to delete the account amounted to defamation (among other things). It wasn't the craziest of pro se filings, but given the subject matter, Caraccioli might have been better served with another reread or two before submitting it. It accused Facebook of "thrusting" Caraccioli's video into the public eye -- including the eyes of children -- and noted that the "sensitivity" of the content was due to the reasonable expectations of any person who "holds their genitalia as a private part."

Eric Goldman, writing for the new Forbes "ad-light" experience (which you too can "enjoy" for 30 days if you just shut off your ad blocker/script blocker!), has more details and analysis.

The applicable federal law, 47 USC 230 (Section 230), has been on the books for over 20 years, and it’s extremely clear: websites aren’t liable for third party content. Caraccioli acknowledged that an unknown third party created the fake Facebook account, so the court easily concluded that Section 230 eliminates Facebook’s liability for it. Caraccioli argued Section 230 didn’t apply because Facebook “reviewed [the fake account] and decided not to remove it,” so this case involved “editorial inaction rather than affirmative editorial action.” Plaintiffs have unsuccessfully tried these arguments many times before, and the arguments didn’t work this time either…

That was just one of Caraccioli's attempts to skirt Section 230. He also (belatedly) argued the posting of the video violated his publicity rights. Not only was this attempt made too far into the process, but Section 230 also protects Facebook, et al. from publicity rights-violating material posted by third parties.

He also tried the "republication" angle, but that, too, was shot down. No matter what cause of action he would have brought, Caraccioli would have had an extremely difficult time getting a court to hold Facebook responsible for a user's postings. (Well, at least no court in the United States…)

As Goldman points out, Caraccioli's chances of success would have greatly increased if he'd chosen to target the actual poster, rather than target the entity easier to locate and serve.

Although we’re sympathetic to how the fake account harmed Caraccioli, he chose the wrong defendant. If Caraccioli could find the perpetrator, he should have much greater success in court. I’m maintaining a roster of over 15 unpublicized non-consensual pornography cases where plaintiffs have won in court (I hope to write up this research later this year), and Caraccioli’s facts are similar to some of these other rulings. Caraccioli just needs to leave Facebook out of it.

Locating and serving a site's user can be incredibly difficult, but going after the service provider pretty much eliminates any chance of success. Going after the actual party behind the post increases the odds of success, even if the initial steps are much harder than tossing a filing fee and a PDF into the nearest federal courtroom.

Jerkingman-Order (PDF)Jerkingman-Order (Text)

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Filed Under: franco caraccioli, jerkingman, liability, section 230
Companies: facebook

20 Comments

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Pixelation, 16 Mar 2016 @ 10:53am

Well, now that the horse is out of the barn...
Maybe he can get a job doing Porn.
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Ninja (profile), 16 Mar 2016 @ 10:56am

In another news the judge is quoted reportedly saying "Stop jerking off dude, sue the right party."

Also I love Urban dictionary and ready jokes.
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Ninja (profile), 16 Mar 2016 @ 10:58am

Re: Well, now that the horse is out of the barn...
Did you mean: now that the cock is out of the pen?
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Bergman (profile), 16 Mar 2016 @ 11:02am

Re: Well, now that the horse is out of the barn...
No, too small.
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Baron von Robber, 16 Mar 2016 @ 11:12am

Franco Caraccioli: "Go away! I'm baiten!"
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Anonymous Coward, 16 Mar 2016 @ 11:23am

If he had picked the right one to sue, he could have beat it in court.
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Anonymous Coward, 16 Mar 2016 @ 11:32am

As long as the advertising industry refuses to clean up its act, the adblocker will remain on.

https://www.helpnetsecurity.com/2016/03/16/malvertising-campaign/
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Anonymous Anonymous Coward, 16 Mar 2016 @ 11:34am

Re: Re: Well, now that the horse is out of the barn...
If size matters so much, couldn't they just pump some pixels?
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Anonymous Anonymous Coward, 16 Mar 2016 @ 11:37am

Too Bad
Would love to see Facebook go down on something.
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Anonymous Coward, 16 Mar 2016 @ 12:02pm

Re: Malvertising
Concur. Linked page is totally broken. It's served cleartext (not HTTPS) and has no visible content when NoScript is active. Due to recurring ISP misbehavior, I no longer allow scripts on any unencrypted connections.
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Another Anonymous, 16 Mar 2016 @ 1:15pm

Re: Re: Malvertising
I am using a fresh Mint 17.3 live boot today. The Forbes page was horrible to try and read raw.

I installed AdBlock Plus into Firefox, and the Forbes page displayed perfectly, with the actual article using the full screen.

It may be that Forbes objects only to NoScript.
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mdmiller@visi.com, 16 Mar 2016 @ 1:49pm

Confused
Not sure what the case was about. So this suit was self-serving? Or about self-serving? Or that he was overly "sensitive"? Or about Caraccioli saving costs and acting has his own attorney but then complaining that someone uploaded a video of it?
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Davelaw (profile), 16 Mar 2016 @ 1:57pm

Poor effort from a 3L
The lawsuit was doomed before it was ever docketed. He sued the wrong party, and his feeble attempts to plead around 230 were pathetic. It was a waste of Facebook's time and the court's time and resources. He should be sanctioned for filing a frivolous action that was barred by settled law, but will escape it since he filed pro se.
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Anonymous Coward, 16 Mar 2016 @ 2:31pm

Re: Re: Well, now that the horse is out of the barn...
Really? You watched a guy (quote) "pleasuring himself" on a video that was released against his will and measured the length of his Cheney?
Basically you just raped that person but you are lucky because it was just a male but watch yourself! If that had been a female person you'd be in trouble and according to some females should loose your reproductive organ.
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Anonymous Coward, 16 Mar 2016 @ 3:58pm

He who represents himself has a fool for a client and an idiot for an attorney.
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Anonymous Coward, 16 Mar 2016 @ 4:01pm

Re:
according to some females should loose your reproductive organ.
according to some females, all males should.
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Anonymous Coward, 16 Mar 2016 @ 4:28pm

fingers... pointed in the wrong direction
Soo.. this guy thinks it's ok to shoot the messenger, but not the one who wrote it?
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That One Guy (profile), 16 Mar 2016 @ 11:23pm

Fingers pointed at the one with the fatter wallet
The messenger has lots of money and is immediately visible, the one who 'wrote it' isn't likely to meet either criteria.
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nasch (profile), 17 Mar 2016 @ 12:53pm

Re: Re:
I think most females would prefer males not loose their reproductive organs, at least not in public.
[ link to this | view in thread ]
Bergman (profile), 18 Mar 2016 @ 10:12pm

Re: Re: Re: Well, now that the horse is out of the barn...
No need to watch it. His reaction says it all.
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