In Reaud v. Facebook Inc., Case No. 23-cv-06329-AMO, 2024 WL 4126066 (N.D.Cal. Sept. 9, 2024), the court dismissed, with prejudice, plaintiff’s claims of sexual harassment and intentional infliction of emotional distress based on “pornographic” advertisements he saw on his Facebook page.
Initially, the court dismissed plaintiff’s claims asserted under a “sexual harassment” theory:
Plaintiff alleges a claim for sexual harassment, advancing that he finds the “pornographic ads” he saw on his Facebook feed “objectionable, outrageous, intrusive, and injurious to himself.” Compl., Attachment 2, ECF 1-3 at 3.
Facebook argues that Reaud’s cause of action for sexual harassment fails because there exists no common law cause of action for sexual harassment. Mot. at 6. The Court agrees. See Myers v. Trendwest Resorts, Inc., 148 Cal. App. 4th 1403, 1426 (2007) (“there is no common law cause of action for sexual harassment.”). The closest approximation to a claim for sexual harassment in California law is the state’s Fair Employment and Housing Act, but that law is inapplicable to Reaud’s claims because he does not interact with Facebook related to his employment or housing. See generally Compl; Cal. Gov’t Code § 12900, et seq.
Reaud contends that his claim arises under Colorado criminal law. Opp. at 5 (citing Colorado Revised Statute § 18-9-111). This argument fails because, as stated in the Terms of Use, any disputes Reaud may have against Facebook are governed by California law. Pricer Decl., Ex. B, Terms of Service (ECF 19-1 at 24).
Reaud alternatively suggests that his claim survives under a different statute, California Civil Code Section1708.88(a), which states in part, “A private cause of action lies against a person 18 years of age or older who knowingly sends an image, that the person knows or reasonably should know is unsolicited, by electronic means, depicting obscene material.” This argument fails for several reasons. First, Reaud may not amend his Complaint to introduce a new legal theory in his opposition to a motion to dismiss. See In re Facebook, Inc. Sec. Litig., 477 F. Supp. 3d 980, 1020 (N.D. Cal. 2020) (“It is well established that a complaint may not be amended by briefs in opposition to a motion to dismiss.”). Second, California Civil Code Section 1708.88 does not apply to “[a]n internet service provider, mobile data provider, or operator of an online or mobile application, to the extent that the entity is transmitting, routing, or providing connections for electronic communications initiated by or at the direction of another person.” Id. § 1708.88(d)(1). Facebook, as an operator of an online application advertising third parties’ goods and services, plainly falls within this exemption. See Compl at 5 (explaining that Reaud’s claims are based on various advertisements he received via his Facebook feed).
Because both theories Reaud asserts fail to state a claim for sexual harassment, the Court must dismiss this claim.
Turning to plaintiff’s claim of intentional infliction of emotional distress, the court explained:
Reaud advances his IIED claim on two theories: (1) that he “received emotional and psychological injury from being forced to view unwanted pornography if he wants to use the Facebook platform,” and (2) that Facebook “intentionally injure[d] [him]” by “blocking him from interacting with friends or Facebook pages … due to posting screen shots of pornographic ads.” Compl., Attachment 2, ECF No. 1-3 at 4-5. Under both theories, Reaud does not sufficiently allege that Facebook acted with the intent of causing emotional distress. An IIED claim “calls for intentional, or at least reckless conduct – conduct intended to inflict injury or engaged in with the realization that injury will result.” Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (1982). Reaud describes, at best, passive conduct on the part of Facebook by posting third-party advertisements, not conduct directed primarily at Reaud. See Christensen v. Superior Court, 54 Cal. 3d 868, 906 (1991) (holding that plaintiffs in that case failed to allege “that the conduct of any of the defendants was directed primarily at them, was calculated to cause them severe emotional distress, or was done with knowledge of their presence and of a substantial certainty that they would suffer severe emotional injury.”). Reaud only asserts in conclusory terms that Facebook “intentionally injur[ed]” him by “continuing to serve such unwanted pornographic ads to [him] every time that [he] logs on to the Facebook platform.” Compl., Attachment 2 (ECF 1-3) at 4. Reaud does not allege any facts establishing that Facebook acted with an intent to injure him or even with a realization that he would be injured, as is required to sustain an IIED claim. See Caraccioli v. Facebook, Inc., 167 F. Supp. 3d 1056, 1064 (N.D. Cal. 2016), aff’d, 700 F. App’x 588 (9th Cir. 2017) (dismissing IIED claim where plaintiff failed to show Facebook acted intentionally in declining to remove content). Reaud’s theory of IIED premised on Facebook’s blocking his access to Facebook fails for the same reason. Indeed, Reaud concedes that he fails to allege sufficient facts establishing that Facebook intended to injure him as is required to sustain an IIED claim. See Opp. at 8. The Court finds that this admitted lack of allegations regarding Facebook’s intent is sufficient to warrant dismissal of Reaud’s IIED claim.
Finally, the court held that plaintiff’s claims were barred by Section 230 of the Communications Act, in that those claims treat Facebook as a “publisher” or speaker of the offending conduct, entitling Facebook to Section 230 immunity.