How To Survive A Section 230 Defense: Recent Cases Provide Guidance

Two recent cases out of the Northern District of California illustrate how immunity under Section 230 of the Communications Decency Act of 1996 (47 U.S.C. § 230) (the “CDA”) is evolving with respect to big tech companies. The two rulings—Suddeth et al. v. Meta Platforms, Inc. et al, 3-25-cv-08581 (N.D. Cal. Mar. 24, 2026) and Joshua Bouck, et al. v. Meta Platforms, Inc., 3:25-cv-05194 (N.D. Cal. Mar. 24, 2026)—were issued by the same judge on the same day, but the court reached different conclusions about Section 230’s applicability to Meta’s involvement in allegedly fraudulent ads. In both cases, Meta invoked Section 230 of the CDA, which generally shields interactive computer services, like Meta, from liability for claims relating to third-party content, but does not provide an exemption when the online platform materially contributes to the content. Some courts have interpreted Section 230 to foreclose lawsuits about and preempt laws imposing liability for user-generated content. But the tide has been turning, and the Bouck and Suddeth rulings provide useful guidance about the allegations needed to overcome Section 230 immunity, at least on a motion to dismiss.

In Bouck, claims alleging that Meta assisted scammers in the creation of fraudulent ads were allowed to proceed. Victims of a pump-and-dump investment scheme sued Meta for its role in ads promising high returns but resulted in worthless stock. Meta moved to dismiss the suit claiming Section 230 immunity. Importantly, the victim-investors did not claim vicarious liability, as seen in most Section 230 cases that get dismissed early. Rather, they argued that Meta consciously targeted the victims using tools from its Ads Manager suite and “participated in the construction of the ads by literally generating, using artificial intelligence, the images and text in the advertisements.” The plaintiffs argued that this degree of involvement is not shielded by Section 230 and the Court found that there was a valid factual dispute over whether these ad-enhancing tools, including the Advantage+ Creative tool, played a significant role in the alleged unlawfulness of the ads. The Court concluded that “[i]f those averments are borne out of the evidence, it will be enough to disrobe Meta of Section 230 immunity.”

The Court also noted that other courts have reached the same conclusion on comparable facts. For example, in Forrest v. Meta Platforms, Inc., 737 F.Supp.3d 808 (N.D. Cal. 2024), Meta faced similar claims regarding its involvement in the creation of fraudulent advertisements. The court in that case denied Meta’s motion to dismiss under Section 230 because Meta facilitated the appearance of the advertisements and provided tools that optimized user engagement with the ads. The court in Bouck remarked that, at this point, the facts exhibit an even stronger argument than was present in Forrest. As Bouck advances to the discovery phase, a central issue will be whether Meta knew it was aiding in the fraud when “a scammer asked Advantage+ Creative to generate an ad using a celebrity, a secret chat room, and the promise of unfathomable riches.”

In Suddeth, however, Meta prevailed. Its motion to dismiss was granted because the plaintiffs did not allege facts sufficient to overcome Section 230 immunity. Much like Bouck, the plaintiffs in Suddeth sued Meta for its role in a scheme of advertisements that fraudulently showed the plaintiffs, a group of financial professionals, endorsing stocks that were part of a similar pump-and-dump scheme. While the facts in these cases were similar in some ways, the plaintiffs here did not sufficiently allege that Meta played a role in the scams. Instead, they alleged that Meta reviewed the advertisements and then targeted, funneled, and delivered them, through algorithmic amplification, to users. The plaintiffs critically did not plead, to the level alleged in Bouck, that Meta participated or was complicit in the creation of the advertisements. In Suddeth, third parties used Meta’s dissemination tools and engaged in the underlying illegal activity, which was insufficient to circumvent Section 230 immunity. The Court noted that the plaintiffs in both Bouck and Forrest did more than allege Meta amplified the fraudulent ads; they either plead that Meta participated in or materially contributed to the creation/development of the offending content in the ads. The Court ultimately granted Meta’s motion to dismiss with leave to amend and Bouck may act as a guide for how the Suddeth plaintiffs can amend its complaint appropriately.

These recent decisions (as well as the social media trials that concluded in March) suggest that, although Section 230 has served as a robust defense for technology companies, its protections may be waning. Courts are now regularly considering a platform’s involvement in content creation and curation when deciding motions to dismiss based on Section 230, and plaintiffs should detail platform involvement in their complaints to survive those motions.

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