The Volokh Conspiracy
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Plaintiff Sues Defendant, Alleging Defendant's "Niche Is Cancel Culture"
From Couture v. Noshirvan, decided Thursday by Judge Sheri Polster Chappell (M.D. Fla.):
This case stems from a dozen TikTok videos…. [According to the Complaint,] Defendant Noshirvan is a TikTok creator. He makes money through TikTok gifts, tips, and subscription fees. His niche is cancel culture. Noshirvan finds a video of someone messing up. He then edits and reposts the video. In the edited video, Noshirvan overlays himself doxing the person depicted in the video—that is, he provides the person's name, contact information, employer, and other personal information. He targets the person as an antagonist, in need of accountability. Many of his millions of followers then harass the person. People pay Noshirvan for this doxing service.
That's what happened here. Someone recorded Plaintiff Jennifer Couture during an argument. And someone then provided that video to Noshirvan and paid his fee. Noshirvan went to work. He edited the video and reposted his version targeting Couture. Many of his followers berated Couture by text and phone call. They found her family, the schools her children attended, and employers and contacted them. Over the next several months, Noshirvan posted twelve videos about Couture. He encouraged his followers to report Couture to Southwest Florida Crimestoppers. And he falsely reported to the Florida Department of Children and Families that Couture had harmed her child.
Noshirvan did not target only Couture. He also targeted Garramone Plastic Surgery (her employer and family). Garramone similarly received calls, texts, emails, and negative online reviews. Garramone responded to a negative review by stating that it was not from a former or current patient. Noshirvan then accused Garramone of slander and questioned why Garramone took out a PPP loan. Noshirvan's videos forced Garramone to terminate contracts with surgeons who worried about reputational harm. Patients canceled scheduled procedures.
Garramone sued Noshirvan for, among other things, tortious interference with business relations; the court rejected these claims, but left open room for plaintiffs to amend their complaint:
The elements of tortious interference are "(1) the existence of a business relationship … (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship." A plaintiff may allege "tortious interference with present or prospective customers but no cause of action exists for tortious interference with a business's relationship to the community at large." …
Garramone does not allege interference with a relationship to the community at large. Rather, Garramone alleges that, due to Noshirvan and his followers' harassment and false business reviews, it was "forced to prematurely terminate contracts with surgeons, who became fearful of reputational harm by being swept into [Noshirvan's] net, and many patients terminated scheduled procedure and ended their relationship." This allegation sufficiently identifies existing business relationships. This allegation, along with other allegations in the complaint, also suffices to allege Noshirvan actually interfered with Garramone's business relationships.
But Garramone includes only conclusory allegations about Noshirvan's knowledge of the business relationships. Plaintiffs claim to have facts to support the knowledge element and request that the Court take judicial notice. The Court declines the invitation to take judicial notice of that information and dismisses the tortious interference claim … without prejudice….
The court thus allowed Garramone to file an amended complaint (due Dec. 15), and noted that, if the amended complaint adequately alleges tortious interference, it would also adequately allege civil conspiracy:
Garramone alleges Noshirvan and his followers agreed to engage in tortious interference and committed overt acts in furtherance of the conspiracy. For example, the amended complaint includes a screenshot of a conversation between Noshirvan and one of his followers. The follower asks, "so we are now working on reviews for his business right?" and Noshirvan responds "Yes." The amended complaint also includes screenshots of several fake reviews posted by Noshirvan's followers. These allegations are enough at this stage….
As to Couture's civil conspiracy claim, the court held it "needs more work":
[Couture] does not sufficiently allege an underlying tort [that defendants were allegedly trying to commit against her]. Plaintiffs argue that Florida's "economic boycott exception" relieves them of the underlying-tort requirement. Under that exception, "if the plaintiff can show some peculiar power of coercion possessed by the conspirators by virtue of their combination, which power an individual would not possess, then conspiracy itself becomes an independent tort." Whether this narrow exception applies here is unclear. And Plaintiffs have not sufficiently alleged this exception in the amended complaint.
Moreover, the Court should not address the exception now…. Couture may be able to sufficiently allege other underlying torts. For instance, she alleges that Noshirvan participated in campaigns to "damage her business and professional reputation, and to tortiously interfere with the business relationship between Jennifer Couture and her clients." The amended complaint does not sufficiently develop how damage to Couture's reputation, perhaps a reference to defamation, or tortious interference serve as underlying torts supporting her conspiracy claim. Nor does Couture sufficiently allege agreement between Noshirvan and his followers or which overt acts were committed in furtherance of the conspiracy. The Court dismisses without prejudice Plaintiff Couture's conspiracy claim [which means that Couture could try to file an amended complaint making the requisite allegations -EV].
Plaintiffs also sued TikTok and ByteDance, TikTok's parent corporation, but the court threw out that claim under 47 U.S.C. § 230:
Nor do TikTok's monetization features transform it into a developer rather than publisher of Noshirvan's content. Viewing the amended complaint in the light most favorable to Plaintiffs, they allege (at best) that TikTok promotes Noshirvan's videos generally. Afterall, Noshirvan is an eligible creator, and TikTok makes money from his videos. But Plaintiffs cannot show that TikTok "contribut[ed] materially to the alleged illegality" of the videos at issue here. TikTok's monetization features turn on the popularity of a video, not its content. And "providing neutral tools to carry out what may be unlawful or illicit [content] does not amount to 'development'" of that content.
TikTok's knowledge of Noshirvan does not change this analysis…. At bottom, TikTok's role in the alleged wrongdoing was publishing Noshirvan's content. So Section 230 bars Plaintiffs' claims. See McCall v. Zotos (11th Cir. 2023) ("Lawsuits seeking to hold a service provider like Amazon liable for its exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone, or alter content—are barred.")….
