Social Media Companies Can Do Whatever They Want - Not!

Every idiot with an online law degree is fond of saying, "Social media companies can do whatever they want!" To shut them up, ask them, "What about the Unruh Act?"

The Unruh Civil Rights Act is a California law that prohibits discrimination based on race, gender, sexual identity, religion, age, and disability. And yes, the Unruh Act applies to tech companies, as Tinder learned in an age-discrimination lawsuit. California Court “Swipes Left” And Reverses Tinder’s Age-Based Price Discrimination Win

Candelore v. Tinder was a lawsuit brought under the Unruh Act against Tinder, based on Tinder's discriminatory pricing practices.

Plaintiff, Allan Candelore, commenced this action on behalf of himself and a putative class of California consumers who were over 30 years old when they subscribed to Tinder Plus. The complaint alleges that Tinder charges consumers who are age 30 and older $19.99 per month for Tinder Plus, while it charges consumers under the age of 30 only $9.99 or $14.99 per month for the Tinder Plus features.

According to the online legal experts, this lawsuit should have been dead. After all, tech companies can do whatever they want! Right?

Wrong. The California Court of Appeals held that those internet lawyers and "journalists" need to shut up as they don't know anything:

We conclude the discriminatory pricing model, as alleged, violates the Unruh Act and the UCL to the extent it employs an arbitrary, class-based, generalization about older users’ incomes as a basis for charging them more than younger users.

The issue in Tinder was clean, as Tinder overtly discriminated against users based on age. Tech companies aren't foolish enough to advertise their discriminatory practices.

Everyone on social media knows there is a double standard. Under the rules of social justice, speakers who "punch up" (based on post-modern racial and sexual hierarchies) aren't censored. Different rules apply based on race and gender. We see this applied in practice, and the only way to prove the case will be go force Medium to undergo discovery.

The Court of Appeals noted that online businesses may not treat users unequally:

The Act applies not merely in situations where businesses exclude individuals altogether, but also “where unequal treatment is the result of a business practice.” “Unequal treatment includes offering price discounts on an arbitrary basis to certain classes of individuals.”

Now some may claim it will be hard to prove that social media companies discriminate against users based on race, gender, and religion.

Yet that is a different argument from, "Tech companies can do whatever they want!"

No, social media companies may not do whatever they want. The Unruh Act applies to online business establishments like Tinder, Medium, Facebook, and YouTube.

Insofar as the Act entitles individuals to “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever” (§ 51, subd. (b), italics added), it follows that the same analysis must apply evenly to arguably less essential commercial services, such as premium features of an online dating app or luxury health club memberships.

And the Unruh Act might even apply to political viewpoints. As the Court of Appeals noted:

The “personal characteristics” protected by the Act are not defined by “immutability, since some are, while others are not [immutable], but that they represent traits, conditions, decisions, or choices fundamental to a person’s identity, beliefs and self-definition.”

The next time and Internet lawyer tells you that social media companies may censor whomever they like, ask them about the Unruh Act, ask them about Candelore v. Tinder, and watch them become triggered into rage or a silent stupor.

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