Six4Three developed an app called “Pikinis” (a/k/a “Pikini”), which enabled its users to search Facebook for photos of women in bikinis. 🙄 The app drew upon Facebook’s Graph API. Facebook later shut down Six4Three’s API access for what seemed to me to be obvious reasons. Nevertheless, Six4Three claimed that Facebook engaged in “bait-and-switch,” i.e., Facebook provided Six4Three access to the API to motivate the app’s production, only to frustrate the app developer’s economic expectations by having the rug pulled out from under it.
Six4Three sued Facebook in 2015 (yes, this lawsuit has been ongoing for a decade) and somehow worked its way up to a Fifth Amended Complaint. In its most recent ruling, the trial court granted Facebook’s anti-SLAPP motion and awarded Facebook nearly $700k in attorneys’ fees. (Facebook claimed nearly $3M in attorneys’ fees, so the awarded amount was still a major haircut). Six4Three appeals the anti-SLAPP dismissal and attorneys’ fee award. The appellate court affirms.
I’ll focus solely on Section 230’s application to Six4Three’s claims, which the appellate court establishes as part of affirming the anti-SLAPP dismissal.ICS Provider. Undisputed.
Publisher/Speaker Claim. Six4Three’s contract breach claim is outside Section 230, per Calise v. Meta. I remind you that the Calise ruling was from the 9th Circuit, while this is a state appellate court. As I mentioned in my blog post about Calise, other state appellate rulings disagree with the Calise ruling on 230’s application to contract claims. This appeals court nevertheless disregards that precedent and instead treats the Calise cite as definitive without further explanation.
Six4Three’s non-contract claims are publisher/speaker claims:
defendants’ purported liability under each cause of action is based on the decision to remove developer access to certain user content, which as the trial court explained, is “akin to the act of de-publishing.” [cite to Sikhs for Justice v. Facebook]…
Six4Three’s noncontract claims, as exemplified by its allegations challenging Facebook’s decision to restrict Graph API data access and its related demands for relief, treat Facebook as a publisher
Third-Party Content. The app was seeking access to user-uploaded content, including the bikini photos.
Overall, a relatively easy Section 230 case.
Contract Breach Claim. Despite getting around Section 230, the contract claim is still a loser. Facebook’s SRR “explicitly stated that Facebook ‘can limit your access to data.’”
* * *
It took a decade to reach this denouement. It apparently took 5 years just to resolve Facebook’s anti-SLAPP determination. Justice delayed is justice denied, etc.
Kudos, I guess, to the plaintiffs’ lawyers for making a lawsuit over a creepy app seem important enough to warrant a decade of litigation. Six4Three takes away from its decade-long experience the following:
- its legal fees to its lawyers (if it wasn’t on contingency),
- a nearly $700k check for Facebook’s lawyers,
- some spicy discovery that Six4Three got from Facebook under seal and but nevertheless impermissibly shared to others and messed Facebook up (but not to Six4Three’s benefit),
- and, I assume, some treasured memories and friends made along the way. 🥂
Case Citation: Six4Three LLC v. Facebook, Inc., 2025 WL 783250 (Cal. App. Ct. March 12, 2025). Jess Miers and I mentioned this lawsuit in our paper on account terminations and content removals but excluded it from the paper’s scope.
Partial library of this case:
