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Image: F-Factor

An Instagram-centric feud over a trendy diet program has erupted into a strongly-worded legal battle. In a newly-filed complaint, New York-based dietician Tanya Zukerbrot and her company Tanya Zuckerbrot Nutrition, LLC, d/b/a F-Factor (“F-Factor”) claim that influencer/digital creator Emily Gellis Lande is on the hook for making “4,500-plus false, defamatory, and/or harassing statements” about heavily-followed Zuckerbrot, and the safety of the F-Factor diet and products, which were allegedly published for “approximately 75 consecutive days” on her public Instagram account in “the form of written posts and over 750 minutes of videos.”

According to the 57-page complaint that Zuckerbrot and F-Factor filed in a New York state court on Thursday, Gellis began “a smear campaign to destroy” Zuckerbrot – an internationally known dietitian and a two-time bestselling author – and F- Factor – a “liberating and sustainable approach to weight loss and optimal health based on scientifically proven fiber-rich nutrition” –  in July 2020. In furtherance of that, Zuckerbrot claims that Gellis has “falsely” asserted that, among other things, “F-Factor diet and products are unsafe and cause people substantial emotional and physical harm,” including causing eating disorders, death, miscarriages, and severe gastrointestinal problems for those following the diet. 

More than that, Gellis, who boasts a following of more than 200,000 followers on Instagram, has claimed that F-Factor and F-Factor dietitians have “engaged in criminal activity,” have “violated HIPAA by disclosing confidential patient information,” and have “lied to the public about the number of complaints it has received about its products.”

As for Zuckerbrot, individually, she says that Gellis “falsely” accused her of “intentionally [misleading] the public regarding the safety of the F Factor diet and products,” all while allegedly having “threatening to kill Gellis’s family,” engaging in “cyberbullying,” and sending “people to follow, intimidate [and] physically harm Gellis,” among other things. Additionally, Zuckerbrot says that Gellis called her a “loser cyber bully who is poisoning people,” and “compared her to Harvey Weinstein and Jeffrey Epstein” and urged companies, such as the Miss Universe program, to sever ties with F-Factor. 

Zuckerbrot and F-Factor claim that Gellis’s claims amount to “outlandish, false, and defamatory statements,” and argue that as a result of her “illegal, abusive, and harassing social media misconduct” have suffered “devastating financial damages and enormous emotional distress.” For instance, before Gellis’s “sustained unlawful attacks” began, they claim that F-Factor “was generating over $1 million/month in revenue and attracting the committed attention of capital investors.” 

However, “since July 2020, when Gellis’s misconduct began, F-Factor’s well-established monthly sales revenue has dropped from approximately $1 million/month to less than $90,000/month, as a direct result of Gellis’s misconduct,” the complaint states. More than that, the plaintiffs argue that “right before Gellis’s misconduct began, there was an investor who was days away from making a significant capital investment in F-Factor at a pre-money valuation of $40 million. As a result of Gellis’s social media misconduct, that capital investor has completely withdrawn his commitment to make his investment in F-Factor.”

Moreover, Gellis’s conduct was facilitated and made possible by Facebook and Instagram, which were repeatedly and comprehensively notified about Gellis’s gross abuse of their platforms. Nevertheless, Facebook and Instagram knowingly and intentionally refused to take any action to prevent or stop Gellis’s outrageous conduct. 

With the foregoing in mind, Zuckerbrot and F-Factor set forth claims of product disparagement, defamation, deceptive trade practices, intentional infliction of emotional distress, and harassment, and are seeking relief in the form of injunctive relief barring Gellis from making false, defamatory, or harassing statements about Tanya Zuckerbrot and/or F-Factor, and monetary damages in an “amount in excess of $500,000 to be determined at trial.”

The Role of Social Media & S. 230

In addition to focusing their claims on Gellis, Zuckerbrot and F-Factor dedicate a fair amount of attention in their complaint to Instagram and its parent company, Facebook, which are not named as defendants, in what might prove to be the most interesting element of the suit thus far. According to the plaintiffs, Gellis’s “uncontrolled, unchecked, and continuous false statements and defamatory and/or harassing conduct starkly displays the harms of social media in its current form,” arguing that “just a few dedicated social media users/publishers can cause an incredible amount of emotional and financial damage” – to third-party individuals and businesses – “in a short time without consequence.” 

“Social media platform companies – Instagram and Facebook, for example – could do something about it,” Zuckerbrot and F-Factor assert. “In fact, to appease consumers and the public, these companies promise and act like they will reasonably regulate what is posted on their platforms, but they do not actually do so in any meaningful way.” 

In the case at hand, Zuckerbrot and F-Factor allege that despite providing Facebook and Instagram with “overwhelming evidence that Gellis violated Instagram’s Terms of Use and Community Guidelines,” the platforms “intentionally refused to do anything to prevent or stop the serious and harmful social media misconduct she directed at Zuckerbrot and F-Factor.” They claim that Instagram is “hiding behind its … immunity” provided by Section 230 of the Communications Decency Act and therefore, “allowed to provide a platform for social media users to abuse others and to shut down thriving, law-abiding businesses, [and] Gellis and other social media users know this.” 

A U.S. federal law, Section 230 of the Communications Decency Act shields websites from civil liability for most of the content created by their third-party users. In short, as University of Arizona law professor Derek Bambauer writes, “If I post a comment to Facebook that defames you,” as a result of Section 230, “you can sue me, but [you cannot sue] Facebook.” As such, the longstanding legislation provides “the legal basis for platforms like Facebook and Twitter to operate without fears of ruinous liability.”

Passed in 1996 as part of the Communications Decency Act, Section 230 has been a hot issue, particularly as of late. The law – and its allowance for online platforms to moderate and remove harmful content without being penalized – is “a bête noire for the right,” according to the Brookings Institute. In other words, Republicans largely view such content-moderation measures as part of “an effort to silence conservative voices,” with President Trump tweeting just this week that Section 230 should be “repealed.”

The “repeal s. 230” tweet more followed from Facebook and Twitter taking action against the false claim that he made on their platforms that the seasonal flu is more deadly than the coronavirus. “Facebook removed the post, and Twitter added a label warning of misinformation about the coronavirus before a user could click to view it. Twitter also prevented the tweet from being shared,” CNBC reported this week).

More broadly, Trump’s tweet comes on the heels of the Department of Justice unveiling – on behalf of the Trump Administration – draft legislation aimed at reforming Section 230, following “a yearlong review of the outdated statute.” As Brookings stated on Thursday, attempts to “strip internet platforms of their liability protections under Section 230 has emerged as a major way for Trump and his allies to threaten Silicon Valley firms,” most of which regard Section 230 as “the bedrock of the Internet.”

But back to the F-Factor: Winston & Strawn lawyer Dan K. Webb, who is among the attorneys representing Zuckerbrot and F-Factor told the New York Times that he is considering future legal action against the social media sites. “These companies are not named because of the immunity Congress gave them [under Section 230], but I am looking at certain legal theories, and we will see where this goes.” 

In response to the suit, Gellis stated on Instagram on Thursday that she “will be hiring counsel to countersue Tanya [Zuckerbrot] for damages.” All the while, the Times reports that “three sources say that they have been interviewed by representatives of the Department of Justice about their knowledge of the F-Factor’s company practices.” 

*The case is Tanya Zuckerbrot, MS, RD, and Tanya Zuckerbrot Nutrition, LLC, d/b/a F-Factor, v. Emily Gellis Lande, 655110/2020 (N.Y. Sup.).