NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 12 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON FYK, No. 19-16232

Plaintiff-Appellant, D.C. No. 4:18-cv-05159-JSW

v.

MEMORANDUM*

FACEBOOK, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted June 10, 2020** San Francisco, California

Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,*** District Judge.

Jason Fyk appeals the district court’s order and judgment dismissing with

prejudice his state law claims against Facebook, Inc. (Facebook) as barred pursuant

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. to the Communications Decency Act (CDA). We have jurisdiction pursuant to 28

U.S.C. § 1291. “We review de novo the district court’s grant of a motion to dismiss

under Rule 12(b)(6), accepting all factual allegations in the complaint as true and

construing them in the light most favorable to the nonmoving party.” Ebner v. Fresh,

Inc., 838 F.3d 958, 962 (9th Cir. 2016).1 We affirm.

1. Pursuant to § 230(c)(1) of the CDA, 47 U.S.C. § 230(c)(1), “[i]mmunity

from liability exists for ‘(1) a provider or user of an interactive computer service (2)

whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or

speaker (3) of information provided by another information content provider.’”

Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019) (quoting

Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100–01 (9th Cir. 2009)). “When a plaintiff

cannot allege enough facts to overcome Section 230 immunity, a plaintiff’s claims

should be dismissed.” Id. The district court properly determined that Facebook has

§ 230(c)(1) immunity from Fyk’s claims in this case.

The first and second requirements for § 230(c)(1) immunity are not in

dispute.2 Fyk focuses on the third requirement. He contends that Facebook is not

1 We reject Fyk’s argument that the district court impermissibly converted the motion to dismiss into a motion for summary judgment. The district court did not deviate from the Rule 12(b)(6) standard by alluding to the allegation in Fyk’s complaint that Facebook de-published one of his pages concerning urination, nor did that allusion affect the court’s analysis. 2 Fyk concedes that Facebook is the provider of an “interactive computer

2 entitled to § 230(c)(1) immunity because it acted as a content developer by allegedly

de-publishing pages that he created and then re-publishing them for another third

party after he sold them to a competitor. We disagree.

“[A] website may lose immunity under the CDA by making a material

contribution to the creation or development of content.” Kimzey v. Yelp! Inc., 836

F.3d 1263, 1269 (9th Cir. 2016); see also Fair Hous., 521 F.3d at 1166. Fyk,

however, does not identify how Facebook materially contributed to the content of

the pages. He concedes that the pages were the same after Facebook permitted their

re-publication as when he created and owned them. We have made clear that

republishing or disseminating third party content “in essentially the same format”

“does not equal creation or development of content.” Kimzey, 836 F.3d at 1270,

1271.

That Facebook allegedly took its actions for monetary purposes does not

service.” 47 U.S.C. § 230(f)(2); see also Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162 n.6 (9th Cir. 2008) (en banc) (“[T]the most common interactive services are websites[.]”). He has also not challenged the district court’s determination that his claims seek to treat Facebook as a publisher and has therefore waived that issue. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider any claims that were not actually argued in appellant’s opening brief.”). In any event, it is clear that Fyk seeks to hold Facebook liable as a publisher for its decisions to de-publish and re-publish the pages. See Barnes, 570 F.3d at 1103 (“[R]emoving content is something publishers do . . . . It is because such conduct is publishing conduct that we have insisted that section 230 protects from liability any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online.” (emphasis in original) (citation and internal quotation marks omitted)).

3 somehow transform Facebook into a content developer. Unlike 47 U.S.C. §

230(c)(2)(A), nothing in § 230(c)(1) turns on the alleged motives underlying the

editorial decisions of the provider of an interactive computer service. We otherwise

reject Fyk’s argument that his case is like Fair Housing because Facebook allegedly

“discriminated” against him by singling out his pages. Fyk mistakes the alleged

illegality of the particular content at issue in Fair Housing with an anti-

discrimination rule that we have never adopted to apply § 230(c)(1) immunity.

2. Contrary to Fyk’s arguments here regarding a so-called “first party” and

“third party” distinction between §§ 230(c)(1) and 230(c)(2)(A), the fact that he

generated the content at issue does not make § 230(c)(1) inapplicable. We have

explained that “[t]he reference to ‘another information content provider’ [in §

230(c)(1)] distinguishes the circumstance in which the interactive computer service

itself meets the definition of ‘information content provider’ with respect to the

information in question.” Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003),

superseded in part by statute on other grounds as stated in Breazeale v. Victim

Servs., Inc., 878 F.3d 759, 766–67 (9th Cir. 2017). As to Facebook, Fyk is “another

information content provider.” See Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc.,

144 F. Supp. 3d 1088, 1094 (N.D. Cal. 2015), aff’d, 697 F. App’x 526, 526 (9th Cir.

2017).

3. We reject Fyk’s argument that granting § 230(c)(1) immunity to

4 Facebook renders § 230(c)(2)(A) mere surplusage. As we have explained, §

230(c)(2)(a) “provides an additional shield from liability.” Barnes, 570 F.3d at 1105

(emphasis added). “[T]he persons who can take advantage of this liability shield are

not merely those whom subsection (c)(1) already protects, but any provider of an

interactive computer service. Thus, even those who cannot take advantage of

subsection (c)(1), perhaps because they developed, even in part, the content at issue

can take advantage of subsection (c)(2).” Id.

4. Finally, we reject Fyk’s argument that Facebook is estopped from

relying on § 230(c)(1) immunity based on its purported pre-suit reliance on §

230(c)(2)(A) immunity to justify its conduct. The CDA precludes the imposition of

liability that is inconsistent with its provisions. 47 U.S.C. § 230(e)(3).

AFFIRMED.

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