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C.A. Won’t Restore Action by App-Maker Against Facebook
By a MetNews Staff Writer
Div. Four of the First District Court of Appeal yesterday declined to reinstate an action against Facebook and six of its executives, including founder Mark Zuckerberg, by a company that devised an app called “Pikinis” which, using Bikinis image recognition technology, enabled users to bring up online photos of persons in bathing suits.
Facebook first opened up its technology to developers then, plaintiff Six4Three, LLC, alleges in its opening brief on appeal, “pulled the rug out from under Six4Three and other Platform developers, reengineering” its website “to deny Six4Three and others access to Facebook functionality that their applications had been built for and upon.”
It contends:
“This destroyed Six4Three’s business, and many, many others.”
Yesterday opinion by Presiding Justice Tracie L. Brown affirms orders by San Mateo Superior Court Judge Robert D. Foiles granting the defendants’ anti-SLAPP motions and awarding the prevailing parties $683,417.50 in attorney fees.
‘Commercial Exception’
In arguing that protected speech—the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16—is not implicated by its lawsuit, Six4Three relies upon the “commercial exception” in §425.17.
That section says §425.16 is inapplicable where the complained-of “statement or conduct consists of representations of fact about” the plaintiff’s “or a business competitor’s business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services, or the statement or conduct was made in the course of delivering the person’s goods or services.”
Brown wrote:
“Here, Six4Three repeatedly alleged that Facebook engaged in a ‘bait-and-switch’ scheme—initially providing developer access to Facebook data, and later restricting that access—but its allegations of liability and harm rely solely on the ‘switch’ part of any such scheme. Six4Three’s injury thus arises not from the… factual representations about Facebook’s business, but on Facebook’s later conduct in restricting access to certain data.”
She went on to say that none of the “alleged injury-producing conduct—restriction of access, internal decision-making to restrict access, or concealment of that decision—constitutes a ‘representation of fact’ about Facebook’s business.”
Communications Decency Act
Proceeding to the second prong of §425—whether there is a probability the plaintiff can prevail on the merits—Brown said that Six4Three, with respect to its non-contract claims, did not surmount the barrier created by §230 of the federal Communications Decency Act. Sec. 230(c)(1) sets forth:
“No 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.”
The presiding justice said:
“We are not persuaded by Six4Three’s citation to authority declining to apply section 230 where the interactive computer service provider had created the content at issue…. Here, unlike these cases, the content at issue is content that originated from Facebook users.”
Contractual Rights
Six4Three also claimed that its contractual rights were abridged by Facebook, pointing to an assurance in its 2012 terms of service, which it termed a “Statement of Rights and Responsibilities” (“SRR”). Facebook agreed to give developers “all rights necessary to use the code, [application program interfaces], data, and tools you receive from us”
Brown pointed out:
“…Six4Three ignores language in the immediately preceding lines that limited developer access and explicitly stated that Facebook ‘can limit your access to data.’…Six4Three also ignores the 2015 SRR, which was in place before Facebook restricted Six4Three’s access to Graph API data and did not contain the phrase on which Six4Three now relies.”
The defendants had sought $2.9 million in attorney fees based on more than 5,000 hours of work on the case. Brown said the $683,417.50 that was awarded is reasonable.
The case is Six4Three, LLC v. Facebook, Inc., 2025 S.O.S. 622.
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