The Northern District of California has dismissed for the third and final time a proposed discrimination class action against Facebook that challenged Facebook’s former tool that allowed advertisers to select target audiences for their housing advertisements in violation of the federal Fair Housing Act. Plaintiffs alleged that this tool could exclude protected classes of consumers from seeing certain advertisers’ housing ads. Facebook moved to dismiss, arguing that plaintiffs lacked standing and its publishing conduct was protected under Section 230 of the Communications Decency Act.

Plaintiffs asserted that Facebook created an Ad Platform that published and disseminated targeted housing ads. The Ad Platform included tools that allowed advertisers to exclude or include people based on certain demographic characteristics. Plaintiffs alleged that these demographics-based advertising filters allowed for selective discrimination against poor and minority communities in accessing certain housing opportunities.

The court agreed that plaintiffs lacked standing. Plaintiffs did not plausibly allege that they were in fact injured by the use of Facebook’s now-defunct ad targeting tools. Plaintiffs did not allege that housing was generally available in their desired markets under their search criteria, or that housing ads that satisfied their criteria were even on Facebook.

The court stated plaintiffs assumed that the reason they received no results was because of unidentified advertisers that theoretically used Facebook’s tools to exclude them based on their protected class status from seeing paid housing ads that plaintiffs assumed were available and met their criteria. The court found this to be a “generalized grievance that is insufficient to support standing.”

Further, Section 230 of the CDA would have immunized Facebook from these claims even if plaintiffs did allege injury. Section 230 “‘immunizes providers of interactive computer services against liability arising from content created by third parties.’” Plaintiffs argued Facebook’s role in “creating, promoting use of, and profiting from paid advertisers’ use of the Targeting Ad tools” removed its immunity under Section 230. The court found Facebook’s advertising tools to be neutral that left it up to the users to determine what content to post. The use of Facebook’s tools were not “mandated nor inherently discriminatory.” Therefore, the claims were barred by Section 230.

Takeaway: The mere possibility that advertising technology could be used to target certain audiences by an unspecified actor to discriminate against protected classes will not be enough to maintain a case. There needs to be a concrete injury that someone suffers from targeted advertising. Further, even if someone is able to show a concrete injury, there is always Section 230 of the CDA to contend with.