In the wake of the explosive disclosure that Facebook has lied about how it treats speech by so-called Elites, including public figures and other influencers, many Facebook users are asking, can I sue Facebook? Regardless of where you fall the political spectrum, it is natural to feel aggrieved by Facebook’s misrepresentations concerning the fairness its censorship. As the maxim goes, with great power comes great responsibility. Facebook advocated its responsibility, claiming it treated the content of its nearly 3 billion worldwide users evenly, yet it allowed 5.8 million high-profile individuals to play by different rules, presumably in effort to promote their Facebook and generate traffic. While many Facebook users may feel they were lied to and defrauded, whether Facebook can be sued over this is something of a different issue.
Both federal and state laws prohibit treating consumers unfairly and deceiving them. Arguably, Facebook customers or consumers were deceived, which in turn, raises the specter of having them treated unfairly. Federal law, in 15 U.S.C. § 45, prohibits “unfair or deceptive acts or practices in or affecting commerce.” In Florida, Chapter 501, the Florida Unfair and Deceptive Trade Practices Act, also prohibits such conduct. The State can bring an enforcement action seeking to enjoin same and can seek civil penalties of up to $5,000 per violation. Applied to all of the Facebook users in Florida, the penalties to Facebook could be substantial. There is a similar federal counterpart, which also prohibits this type of behavior and allows for enforcement by the Federal Government, including injunctive relief and similar monetary penalties.
Under Florida law, an individual who suffers actual damages because of a business engaging in unfair and deceptive conduct may bring a private right of action to recover their damages plus attorney’s fees and costs. The key to whether there exists a right by Florida-based Facebook users to bring a claim is whether they have suffered actual damages in reliance on Facebook’s misrepresentation. Generally speaking, Florida law defines actual damages as being the value of a good or service had it been provided as represented versus how it was actually provided. Here, Facebook offers access to an internet speech platform with censorship guidelines, which Facebook misrepresented as being open, equal, and evenhanded. Rather than to an internet speech platform where it appears posting guidelines were not fair or evenly applied, and the censorship was not made of certain elite, political and social influencers.
For a civil lawsuit to succeed, Facebook users must be monetarily damaged in a quantifiable way. At first blush, it seems difficult to quantify the difference between posting on a truly equitably censored internet speech platform and an uncensored forum. While there is certainly a difference between what Facebook represented and what Facebook users received, the value of that difference is hard, if not impossible, to quantify.
If a court believes that it can be quantified monetarily, then an action under Florida’s Unfair and Deceptive Trade Practices Act by consumers for their damages may exist. Typically, such actions can be brought on behalf of a class of aggrieved individuals in a class action, and as noted above, attorney’s fees are recoverable by the prevailing party. However, Facebook’s user agreement contains both a class action waiver and a mandatory arbitration clause requiring arbitration in a state other than Florida. While Florida’s Unfair and Deceptive Trade Practices Act would certainly apply to Florida customers, they may well be arbitrated out-of-state, on an individual basis, i.e., not as a class, which severely limits recoverable damages. This why Facebook includes a class waiver and arbitration agreement in their terms and conditions. Most businesses incorporate such clauses into their end-user agreements, as a matter of good business and legal policy. Many scholars suggest that these waivers give Facebook and other massive corporations greater latitude to act with impunity because they will not face federal class-action lawsuits with big settlements.
In the coming days, there will no doubt be recriminations, possibly claims and class action lawsuits. Our view is that under Florida law, these are unlikely to be successful.
Wherever you land on the political spectrum, Facebook’s actions should deeply trouble you. Their use and abuse of the privilege of having an internet speech platform—i.e. using the internet to facilitate their business, profit handsomely, and gain access to billions of individuals—requires them to maintain a measure of public trust. Assuming the Wall Street Journal’s reporting on their conduct is true, they have breached this responsibility miserably and undermined a fundamental tenant of our democracy by subverting and perverting Facebook customers’ free speech rights, which Facebook has subjectively censored.