Fast Exit > 0

Revenge Porn, Social Media

SUING FACEBOOK AS EASY AS 1-2-3? HERE IS THE PETITION FOR THE $123M TX REVENGE PORN CASE

July 20, 2014

Attached is the petition in the “Revenge Porn” Facebook case.

To summarize:  On July 25, 2014 a case was filed in Harris County, TX against Facebook and an individual named Adeel Shah Khan seeking $123m in damages.  Khan is the former friend of the plaintiff.  Khan created a fake Facebook page under the plaintiff’s name and posted doctored pics of the plaintiff.  The pics depicted the plaintiff’s face superimposed onto nude bodies.  In Dec. 2013 the plaintiff’s friends and family received Facebook friend requests from the fake page.  “Over a period of months,” Facebook was repeatedly contacted by the plaintiff, her friends and family requesting removal of the page in accordance with Facebook’s terms of service.  It wasn’t until “months” later that Facebook finally deactivated the page, prompted by a subpoena from the Houston Police Department.

A couple things worth noting:

  • Filed in TX State Court
  • The pornographic pics of the defendant were all photoshopped.  That is, defendant’s head was superimposed onto nude images. So, not classic revenge porn involving the nonconsensual distribution of images showing a person’s actual body.
  • Damages of $123m are based on the 1.23b Facebook subscribers.  The petition argues that defendant is owed a dime for every subscriber.  I’d love to know how this ten cents was decided on.  Why not $.05?  $.15?  $5.00 per?
  • I would have recommended that the attorney improve the association between the damages suffered by the victim and the amount sought from the defendant.   To make damages a function of the total Facebook usership, the lawyer is interpreting publication onto Facebook (presumably with open privacy setting) as a distribution to all users.  But if the privacy settings on this imposter Facebook page were completely unrestricted, technically anybody with internet access could have  seen it.  So on the attorney’s logic, should he actually be claiming a dime per person in the world with internet access?  He seems not worried about the number of actual people who viewed it — only on the number who could have.
  • The petition reads like a class action consumer fraud case — basing the damages as a function of the number of subscribers, punishing the defendant corporation on a per person basis.  However, unlike a class action consumer fraud case, all damages are being sought for the loan defendant.
  • Claims: 1) negligence against FB, 2) breach of contract against FB, 3) gross negligence against FB and Khan 4) intentional infliction of emotional distress “by defendant” [which defendant is not specified. The paragraph alternates between using the singular and plural re:  defendant.], 5) invasion of privacy against FB and Khan
  • I don’t think the plaintiff had a Facebook account.
  • The harms suffered by the plaintiff:  “significant trauma, extreme humiliation, extreme embarrassment, severe emotional disturbances, and severe mental and physical suffering.”  I wish these were a little more specific.
  • Much of the petition soapboxes about Facebook’s failures to all of its users.  This is where it really reads more like a consumer fraud case:  “Plaintiff seeks to expose the frailties and failures of the falsely advertised, and false promoted privacy mechanisms of Defendant Facebook the largest social network in the world, and the significant damages that result to innocent individuals like Plaintiff as a result of those frailties and failures that Defendant Facebook’s upper management, officers, directors, and key employees have long known about and essentially concealed.  The true nature of the frailties and failures of its systems upon the unsuspecting and innocent public.”  [all bold, italics and grammar problems in original.]
  • Later it just comes out and says that the case was brought basically to teach FB a lesson and generate a media frenzy:  “[t]his lawsuit is intended by Plaintiff and Plaintiff’s counsel to get Defendant Facebook, its officers, directors, management, employees and subscribers (with media attention) to stand up, take notice and pay attention to the serious privacy violation concerns involved in revenge porn situations, such as what has occurred in this with respect to Plaintiff and the emotionally destructive injury issues involved in this lawsuit.”  [Really, there must have been a sale in Texas at the italics and bold store.]
  • It claims that Facebook failed all of its users and the media in that it “miserably failed at its promise to its 1.2 billion publicly reported subscribers and the media to promptly remove imposter sites.”
  • The petition gives short shrift to the fact that the doctored photos are humiliating on their own by virtue of viewers mistaking the photos as depictions of the plaintiff’s nudity.  That is, the petition takes for granted the inherent problem of a third party distributing sexual pictures of another person without consent to do so.  Instead, the petition is worried that the images falsely depict Plaintiff “as some overly bold and overly aggressive sexual person.”  So the issue according to the petition is not that nude pictures of Plaintiff (or her likeness) were published, it’s that Plaintiff comes off as slutty by having the nude pictures there.  It assumes that viewers of the pics would assume that she indeed voluntarily published the photos and would mistakenly characterize her as sexually aggressive.
  • I don’t know why lawyers don’t use specific metrics.  Instead of indicating how many times Facebook was contacted, it was “many.”  Instead of indicating how long Facebook failed to remove the imposter site, it says “a relatively long period of time.”  No mention of how many friend requests were sent to friends and family or how many of them contacted Facebook for removal.  No dates about when Facebook was contacted or mention of the method used to contact.
  • As I’ve complained during other armchair quarterbacking sessions, we have a pretty absent plaintiff.  No age, profession, or details about how she was personally impacted.

It will be interesting to see how this plays out. An immediate CDA 230 dismissal against FB?

For the negligence claims to survive, the lawyer will need to establish that defendants had a duty of care toward the plaintiff.  Negligence is when somebody who owes you a duty of care, fails to act according to a reasonable standard of care, causing injury.  Not likely.

If indeed Facebook did breach its own Statement of Rights and Responsibilities for ignoring the takedown requests by the plaintiff, what, in actuality should the damages be?  Especially since it has the right to change its terms whenever it wants.

With gargantuan social networking companies like Facebook and Twitter and Instagram — their terms of service end up impacting us the way that laws and statutes do. They are quasi-governments — with the constituents, privacy invasions, and financials to go along with it. However, unlike the legislative process through which our democratic laws are born, these sites can change, add, delete their rules at whim.  And also unlike our government, they don’t have a matured mechanism for law enforcement and accountability — though much more so than our local precincts, they certainly DO have the funds to finance both.  It’s a pity that it took a subpoena from a poorly resourced precinct for Facebook (worth $100 billion) to comply with the repeated (allegedly) requests for takedown of this imposter page.   Harms happen all the time on these platforms (e.g. distribution of rape videos, revenge porn, harassment, bullying, threats, extortion, impersonation, doxxing) and the spread of these harms can frequently only be halted by the platform responding immediately to requests for takedowns. Removal is always at the discretion of the site.  So what happens when the site is more interested in removing voluntary photos of a mom breastfeeding than naked photos of a teen?  Is it the site’s prerogative? And people who don’t like it should just opt out? Will the plaintiff make progress on the breach of contract claim when the breach claimed was really Facebook’s failure to adhere to its own voluntary (and shifting) policies  — and not an actual agreement between Plaintiff and Facebook?

Thanks to my TX cousin, Jay Cohen, Esq. for procuring the petition.