Judge Rejects Meta's Attempt to Seal Various Information About Moderating Practices

"The manner in which Meta moderates content from an adult platform competing with OnlyFans versus content that originates from OnlyFans is directly at issue. Therefore, Meta's general policies which articulate the extent to which sexual content is permitted on any of Meta's social media platforms are also relevant."

From Judge William Alsup's opinion Thursday in Dangaard v. Instagram, LLC (N.D. Cal. 2024):

The public enjoys the right to know to whom the public courts provide relief (or not). Filings "more than tangentially related to the merits of a case" may be sealed only for "compelling reasons." That "standard applies to most judicial records," with a "good cause" standard applying otherwise….

This order now addresses materials contained within Meta's motion for summary judgment that Meta wishes to keep sealed…. First, Meta states that citing to its internal policies of how it moderates content and statistics reflecting how Meta blocks certain content would allow "malicious actors to take advantage of this specialized internal information to circumvent or otherwise render ineffective" Meta's moderation processes…. Second, that Meta's content moderation policies could cause competitive harm if disclosed because competitors could copy Meta's techniques to better operate their online services. Third, that some of the information contains personal identifying information and other material implicating the privacy interests of third parties.

As a preliminary issue, Meta seeks to seal portions of the motion for summary judgment itself. Given that the motion is dispositive, Meta must articulate a compelling reason to justify sealing swaths of a dispositive motion. This order finds that Meta has not met its burden. Though Meta seeks to seal specific sentences and headers, all of the proposed redactions speak to the merits of the action for which the public should have access.

The manner in which Meta moderates content from an adult platform competing with OnlyFans versus content that originates from OnlyFans is directly at issue. Therefore, Meta's general policies which articulate the extent to which sexual content is permitted on any of Meta's social media platforms are also relevant. Moreover, this order finds that Meta has not demonstrated that any of the proposed redactions threaten competitive harm or would teach someone how to override its moderation process; Meta makes vague arguments but none articulate how an unsealed motion would actually lead to any of these supposed harms. For these reasons, Meta's proposed redactions within its motion for summary judgment are DENIED.

Meta also seeks to seal portions of its opposition expert report, written by Mr. Doug Bania. As with the written motion for summary judgment, this order finds that Meta has not met its burden in identifying a compelling reason as to why it should seal parts of this expert report. The proposed redactions expound upon issues that tie directly into the merits of this action; absent any compelling reason regarding prospective harm, this exhibit must be unsealed. As such, Meta's proposed redactions for Exhibit 31 attached to its motion for summary judgment is DENIED….

The court does, however, allow redaction of information implicating third parties' privacy interests. David Azar (Milberg Coleman Bryson Phillips Grossman PLLC) represents plaintiffs.

Comments

[Stupid Government Tricks]

Seems oddly unspecific.

The manner in which Meta moderates content from an adult platform competing with OnlyFans versus content that originates from OnlyFans is directly at issue.

Why not name the competitor instead of just calling it "an adult platform competing with OnlyFans"? The case is "Instagram"; I'd never thought they were "an adult platform" in the same manner as OnlyFans.

[M L]

Meta is Instagram. Instagram/Meta is the defendant, not the competitor. I'm not sure what the case is about, but it sounds as though someone is alleging that Meta is favoring or disfavoring OnlyFans versus others, and perhaps therefore not abiding by their terms and conditions or something like that.

UPDATE: Found this blog post about it. https://blog.ericgoldman.org/archives/2022/12/facebook-cant-shake-lawsuit-over-onlyfans-bribery-allegations-dangaard-v-meta.htm

[Stephen Lathrop]

For the life of me I cannot understand why internet platforms do not dispose of this problem in a few sentences, thus:

Our policy is to publish what it pleases us to publish, and likewise to withhold publication at pleasure. We also reserve to ourselves sole power to take down any prior publication, at any time, without explanation. These are powers guaranteed to all publishers by the Press Freedom clause of the First Amendment. We invite and welcome contributions from would-be contributors, which may be edited for either style, content, or to suit our preferences for and against particular kinds of content or subject matter. Except in individualized and separately negotiated signed agreements, no contractual rights are created or implied by these terms.

Actually, none of that should be necessary. But these are baleful times for publishers. Too many internet utopians, would-be free-expression pundits, and people in government, labor under a misapprehension. They suppose that somehow invention of the internet suspended the Constitution, and left them collectively at liberty to create a new legal regime for free expression, from scratch, by statute, policy, or legal decree.

[Brett Bellmore]

I assume they don't do that because they want to actually have some customers.

[David Nieporent]

Their terms and conditions do state that. Why do you think that "disposes of this problem"?

[Stephen Lathrop]

Nieporent — Bellmore seems to read it differently than you do. Maybe he can explain it to you.

[Brett Bellmore]

Well, David is right, the TOS do ultimately say that. But they count on almost everybody ignoring the TOS, because if you took the TOS seriously, nobody would use their services.

And then the legal system doesn't take the TOS terribly seriously, either, recognizing that people just click through them, instead of actually reading them. You can't really TOS your way out of supplying the service you purport to be providing, just by burying a note somewhere saying, "Ignore what we publicly say, we're not promising anything."

Your problem is that you can't quite grasp that these platforms aren't publishers. They're closer to the telephone company than a newspaper; They're a communications medium, they're providing a service, but it's not annoyingly curated content pushed to you, it's the ability to communicate with other people as YOU chose.

[Stephen Lathrop]

There you go, Nieporent, now Bellmore says he agrees with you.

[Brett Bellmore]

I agree it's in the TOS, it's just that the only reason they get away with it is that almost nobody sees it, and it's largely unenforced. They'd kill their business model if they made it perfectly clear that they meant to exercise total editorial control, and then actually acted on it.

It's like the phone companies would implode if they told everybody they were going to exercise editorial control over what you could say to somebody on a phone call.

[Stephen Lathrop]

Bellmore, motivated stupidity is still stupidity. The platform business model does not involve selling anything to platforms' commenters. It involves selling advertising to businesses in exchange for access to commenters' attention. Nothing like that goes on in the phone company business model.

And no, commenters will not cease to attend platforms if they assert forthrightly they are at liberty to edit at pleasure. That 1A-protected power for periodical publishers was cherished for centuries in this nation, without driving away readers and listeners from publishers and broadcasters.

If this blog were more comprehensively edited than it already is, even you would continue to attend it, at least once you got over an initial fit of pique. With your pattern of mostly pure-opinion posting—like that of the vast majority of platform contributors—you would hardly ever need editing, and your contributory offerings would even less often need to be rejected.

Basically, your experience would be the same as it is now. Any smart publisher would hire editors skilled enough to recognize the business value of your cost-free, over-reliable provision of opinions so peculiarly stupid. To a publisher, attractive stupidity is an extra-valuable business asset. You attract the befuddled attention of smarter commenters happy to waste time trying to correct you, as I am doing now.

Note that smarter commenters who reply to you do not expect to influence you. They see your comments as handy foils, useful as occasions to influence others. Which is what I am trying to do now.

Of course, stupider commenters enjoy your comments as opportunities for mutual reinforcement. From a pure-business publishing point of view, that makes your attention a sort of twofer bargain—a sales commodity of above-average value.

As a former publisher who disagrees with almost everything you post, I would rank you among the most valuable contributors to this blog, and tell my editors to take extra care not to risk driving you away. Samuel Johnson famously observed, "None but a blockhead ever wrote, except for money." And here you and I are, both attentive blockheads, and thus spectacular values for the VC's publishing business.

See, that's how a periodical publishing business model works. You may be too stupid to like it, but it works on your behalf anyway.

[Brett Bellmore]

"Bellmore, motivated stupidity is still stupidity."

On that we agree.

The platform business model does not involve selling anything to platforms' commenters. It involves selling advertising to businesses in exchange for access to commenters' attention."

And here you elide what it is that the commenters are paying attention to, amid the sponsored content, aka "commercials": Each other's content!

The platforms are a way for users to communicate with each other, paid for by commercials run by the platform. The platforms would not even exist if the users didn't intend to communicate with each other.

"And no, commenters will not cease to attend platforms if they assert forthrightly they are at liberty to edit at pleasure. That 1A-protected power for periodical publishers was cherished for centuries in this nation, without driving away readers and listeners from publishers and broadcasters. "

Because periodical publishers are not in the business of facilitating communication between their users, as these platforms are. Periodical publishers are in a different line of business from these platforms. This is what you consistently refuse to accept: FB and X are not really weird newspapers. They are not publishers of the users' content. They are a conduit between the users. They are more like the telephone company than a newspaper, if the telephone company paid for the service by interrupting your conversation with advertisements instead of billing you on a monthly basis.

And nobody uses a conduit that gets uppity and decides what communications it will carry, and declares the right to alter your messages to your friends.

And that is why FB waited until it had a very substantial amount of monopoly power before it got uppity and started asserting a right to get between its users and obstruct their communications. Because they understand, even if you don't, why the users are using their product: So that they can talk to each other. Not so that they can see the advertisements.

[Stephen Lathrop]

Bellmore — You intend to talk about organizations and activities that are not you. Problem is, your focus and subject choices are about nothing but you.

Reflect a moment. Big social media platforms have gigantic operating budgets. They got that money competitively, at the expense of other businesses. If social media platforms were alike with telephone companies, then that massive shift of revenue would have impoverished telephone companies. Instead, it impoverished periodical publishers and broadcasters.

That is a succinct and devastating refutation of claims that social media companies are not publishers. Social media companies practice publishing activities, and won the money to do it by competition with other publishers. Of course social media companies are publishers. The most successful ones are the largest publishers the world has ever seen.

[David Nieporent]

I agree it's in the TOS, it's just that the only reason they get away with it is that almost nobody sees it, and it's largely unenforced. They'd kill their business model if they made it perfectly clear that they meant to exercise total editorial control, and then actually acted on it.

This is partially right and mostly wrong. Yes, consumers want a light touch in oversight. That does not mean that they do not realize that the business has a right to do as much oversight as it wants, and that they don't want the business to exercise oversight. A restaurant that heavyhandedly kicked out diners who were expressing opinions the owner disapproved of would quickly have business difficulties. A restaurant that exercised no control over what the patrons were saying and how they were saying it would also have business difficulties.

[David Nieporent]

Well, David is right, the TOS do ultimately say that. But they count on almost everybody ignoring the TOS, because if you took the TOS seriously, nobody would use their services.

Hypothesis #1: Even though the TOS says it and we all agree the TOS says it and people use the services anyway, they must not take the TOS seriously, because Brett Bellmore dislikes what the TOS say.
Hypothesis #2: Brett Bellmore doesn't understand human psychology, and therefore does not realize that most people are willing to make tradeoffs when they're getting something for free.

Your problem is that you can't quite grasp that these platforms aren't publishers. They're closer to the telephone company than a newspaper; They're a communications medium, they're providing a service, but it's not annoyingly curated content pushed to you, it's the ability to communicate with other people as YOU chose.

Your problem is that you can't quite grasp that this is wrong. They are not even a little bit like the telephone company (except for narrow segments of their offerings, like Facebook messenger.) The phone company is for private one-to-one communications. Major social media outlets serve an entirely different function in an entirely different way; they are indeed for mass publication of curated content pushed to you. I mean, empirically, that's what they are, no matter how much you wish it were otherwise. They are not for personal communication. That's what email, or text messages, or the phone company are.

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