Ix.) Case5:15-cv-O4145-EJD Document8 Filed09/21/15 Pagel of 38 Franco Caraccioli 1281 Avenue #2905 San Diego, California 92101 832-782-3298 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA FRANCO CARACCIOLI, an individual, Plaintiff, v. FACEBOOK, INC., a Delaware corporation, and Does Defendants. Case No. CV-15-04145-NC Hon. Judge Nathanael M. Cousins FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES: (1) Defamation; (2) Libel; (3) Invasion of Privacy Upon the Solitude or Seclusion; (4) Invasion of Privacy by Public Disclosure of Private Facts; (5) Invasion of Privacy in False Light; (6) Intentional Infliction of Emotional Distress; (7) Negligent In?iction of Emotional Distress; (8) Breach of Contract; (9) Negligent Supervision and Retention; AND (10) seq. through 17210, et seq. 1 FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Unfair Business Practices in Violation of Cal. Bus. Prof. Code 17000, et Document8 FiledO9/21/15 Page2 of 38 INTRODUCTION Plaintiff, FRANCO CARACCIOLI (hereinafter as ?Mr. Caraccioli?), alleges as follows: NATURE OF THE ACTION 1. This is a case about one of the most powerful corporations in the world, a corporation that maliciously recreated obscene or pornographic sexual content on a personal pro?le account named ?Franco Caracciolij erkingman? (hereinafter as ERKIN GMAN or ?Account?), inside its online digital community (hereinafter as ?Website?) because in Exhibit 1 (hereinafter as Defendant Facebook ADMITS that after Defendant Facebook ERKINGMANT ACCOUNT which contained blatant pornographic obscenity, and recklessly that it was legitimate lawful content and NOT in violation of its community standards, thus, Defendant Facebook recreated, sponsored, republished, and/or acted as a speaker of the content by deciding to continue displaying it as opposed to deleting it. 2. Franco Caracciolij erkingman conspicuously contained pictures and videos of sexually obscene or pornographic content regarding Mr. Caraccioli. Mr. Caraccioli did not give consent, create, nor has any knowledge of the person or entity that originally created the ERKINGMAN ACCOUNT. 3. It is indisputably evident that the Defendant clearly and convincingly entertained [see Exhibit 1] the sexual content in the ERKINGMAN ACCOUNT because the Defendant emailed Mr. Caraccioli ADMITTIN that after the ?Franco Caracciolij erkingman,? account, Defendant evidently through willful blindness, that the [obviously sexual]content inside the ERKINGMAN ACCOUNT . . follows the Facebook Community Standards.? 4. After entertaining or ?reviewing? the [sexual]content in the ERKINGMAN ACCOUNT, Defendant republished or recreated the ERKINGMAN ACCOUNT, in whole, by continuing to display its content online through because the Defendant recklessly or maliciously ?determined? that the ERKINGMAN ACCOUNT is following the Defendants? own community standards when it blatantly was not. 5. Reviewing blatantly obvious sexually obscene material and concluding that it is not sexually obscene and not in violation of the Defendant?s own ?Terms of Service,? when in fact it - 2 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Document8 FiledO9/21/15 Page3 of 38 obviously is, constitutes actionable conduct that is~ grossly negligent, conscious, or with reckless disregard towards the truth or falsity of the ERKINGMAN ACCOUNT personal/private rights of others. This type of behavior is commonly referred to as MALICB under federal law which awards exemplary damages even in absence of actual damages. 6. The Defendant recklessly republished the sexually pornographic content because the Defendant continued to display the JERKINGMAN ACCOUNT along with its obvious sexual content in the Defendant?s Website a?er the Defendant received and entertained several noti?cations from Mr. Caraccioli and other people, notifying the Defendant to delete the ERKINGMAN ACCOUNT because it was obscene and violating the Defendant?s very own online community standards due to the sexual content of the ERKINGMAN ACCOUNT. 7. By recklessly or maliciously disregarding DEFENDANT very own corporate laws, the Defendant is engaging in deceptive or fraudulent business practice and in violation of state and federal law. 8. After entertaining the noti?cations, the Defendant recklessly or maliciously and in willful blindness, disregarded its own corporate policies regarding online community standards because the Defendant republished or recreated in whole the JERKINGMAN ACCOUNT by continued to display the ACCOUNT along with its blatantly obscene sexual content. 9. Subsequently, after the Defendant sent an email to Mr. Caraccioli notifying him that the ERKINGMAN ACCOUNT along with its pornographic content would continue in the Website, Mr. Caraccioli emailed the corporation to notify them of their reckless disregard to the sexual content and to their own community standards, and that legal action would follow, which caused the corporation to delete the ACCOUNT within a day thereafter. THE PARTIES 10. Mr. Caraccioli is an individual, currently in his third year at the Thomas Jefferson School of Law, residing in the County of San Diego, California. 11. Defendant is a corporation registered in the California Secretary of State as FACEBOOK, INC., and DOES 1 through 10 (hereinafter as or - 3 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Document8 FiledO9/21/15 Page4 of 38 ?Defendant,? or ?Facebook?) are located in their with its primary place of business at 1601 S. California Ave. Palo Alto, CA 94304. 12. DEFENDANT FACEBOOK is incorporated under the laws of Delaware. 13. DEFENDANT FACEBOOK is a multi-billion dollar corporation that is publicly traded in the New York Stock Exchange under the ticker 14. The DEFENDANT FACEBOOK provides a social networking Website that connects people with their ?iends, families, and other online communities. 15. The true names and capacities, whether individual, corporate, associate, or otherwise of the Defendants named herein as DOES 1 through 10, are unknown to Mr. Caraccioli at this time. Mr. Caraccioli therefore sues said Defendants by such ?ctitious names pursuant to 474 of the California Code of Civil Procedure. Mr. Caraccioli will seek leave to amend this Complaint to allege the true names and capacities of DOES 1 through 10 when their names are ascertained. 16. Mr. Caraccioli is informed and believes, and based thereon alleges, that each of the DOE Defendants is in some manner liable to Mr. Caraccioli for the events and actions alleged herein. All named Defendants, and DOES 1 through 10, will be collectively referred to as ?Defendants.? 17. Mr. Caraccioli is informed and believes and thereon alleges that at all times herein mentioned each of the Defendants was the agent or employee of Facebook Inc., in doing the things hereinafter alleged, and was acting within the course and scope of such agency and employment. Mr. Caraccioli is further informed and believes, and thereon alleges, that each of the Defendants herein gave consent to, rati?ed, approved, and authorized the acts alleged herein to each of the remaining Defendants. 18. Mr. Caraccioli is informed and believes, and based thereon alleges, that each of the DOE Defendants is in some manner liable to Mr. Caraccioli for the events and actions alleged herein. All named Defendants, and DOES 1 through 10, will be collectively referred to as ?Defendants? or 19. Mr. Caraccioli is informed and believes, and based thereon alleges, that each of the DOE Defendants is in some manner liable to Mr. Caraccioli for the events and actions alleged - 4 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Document8 FiledO9/21/15 Page5 of 38 herein. All named Defendants, and DOES 1 through 10, will be collectively referred to as ?Defendants.? 20. Mr. Caraccioli is informed and believes and thereon alleges that at all times herein mentioned each of the Defendants was the agent or employee of acebook, in doing the things hereinafter alleged, and was acting within the course and scope of such agency and employment. Mr. Caraccioli is further informed and believes, and thereon alleges, that each of the Defendants herein gave consent to, rati?ed, approved, and authorized the acts alleged herein to each of the remaining Defendants. 21. Mr. Caraccioli is informed and believes, and based thereon alleges, that at all times, DEFENDANT FACEBOOK and DOES 1 through 10 were acting as an agent for each of the other Defendants and each were co-conspirators with respect to the acts and the wrongful conduct alleged herein so that each is responsible for the acts of the other in connection with the conspiracy in such wrongful acts in connection with the other Defendants. 22. DOES 1 through 10, were at all times relevant employees, supervisors and/or managers in managerial positions and were responsible for hiring or implementing policies of said Defendants, and in fact, in doing the actions complained of in this Complaint, were implementing and following the policies of DEFENDANT FACEBOOK. JURISDICTION AND VENUE 23. Subject matter jurisdiction over Mr. Caracciolis' federal claims is proper under this court's original jurisdiction because this case involves substantial issues of federal law involving the Communications Decency Act 47 U.S.C. 230, more precisely, whether Congress intended to protect reckless or malicious worldwide dissemination of pornographic content with 230. 230 provides broad immunity, however, following relevant precedent established by this United States District Court Northern District of California, and the United States Court of Appeals for the Ninth Circuit, RECKLESS or MALICIOUS conduct towards the rights and privacy of others is NOT protected from liability because it would go against the legislative?s intent thrusting 230 immunity, and the particular facts in this complaint involve CLEAR AND CONVINCING evidence amounting to RECKLESS or MALICIOUS conduct, at best. - 5 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Document8 FiledO9/21/15 Page6 of 38 24. See Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003)(Immunizing providers and users of ?interactive computer service[s]? for republishing material when they have reason to know that the material is not intended for publication therefore contravenes the Congressional purpose of encouraging the ?development of the Internet,? or the ?marketplace of ideas?) 25. This Court also has subject matter jurisdiction over Mr. Caracciolis' related state law claims under 28 U.S.C. 1367 (supplemental jurisdiction) because all the causes of action arise from the same common nucleus of operative fact. 26. Venue is proper in this Court because the Defendants purposefully availed themselves of the privilege of doing business in California and DEFENDANT FACEBOOK has its corporate headquarters and principal place of business within the Northern District of California. GENERAL ALLEGATIONS (Facts Common To All Causes of Actions) 27. On September 14, 2014, an account who?s creator is still unascertainable to Mr. Caraccioli, created the JERKINGMAN ACCOUNT hereon alleged, inside Facebook?s online community without Mr. Caraccioli?s consent under the name ?Franco Caracciolijerkingman,? 28. Mr. Caraccioli became aware of the JERKINGMAN ACCOUNT because that same ACCOUNT, ?Franco Caracciolijerkingman,? sent Mr. Caraccioli a friend request. 29. The JERKINGMAN ACCOUNT included videos and pictures of Mr. Caraccioli sexually arousing or pleasuring himself and was republished or recreated in whole by consciously continuing to display its [sexual] content because a?er DEFENDANT FACEBOOK ?reviewed? its [sexual] content, DEFANDANT FACEBOOK ?determined? that the account is following the Defendant?s community standards. 30. After receiving the friend request, Mr. Caraccioli reported and noti?ed DEFENDANT FACEBOOK of the ERKIN GMAN ACCOUNT and demanded for the ERKINGMAN ACCOUNT to be deleted because of the humiliating sexual nature of the content inside the JERKINGMAN ACCOUNT. 6 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Document8 FiledO9/21/15 Page? of 38 31. Mr. Caraccioli believes that the JERKINGMAN ACCOUNT was sent to every friend that Mr. Caraccioli has in his community because of the amount of messages or calls he received that day, requests which several friends did in fact accept. 32. Given that hundreds of Mr. Caraccioli?s closest family members, friends, professors, employers, and acquaintances are in Mr. Caraccioli?s digital community of friends, Mr. Caraccioli decided to click on several photos and videos published in the ERKINGMAN ACCOUNT in order to report or notify DEFENDANT FACEBOOK of the ERKINGMAN sexual content by more than one occasion. 33. Mr. Caraccioli sent these noti?cations using his own personal ACCOUNT named ?Franco Caraccioli? at the time of the incident and using DEFENDANT Website. 34. Immediately thereafter, Mr. Caraccioli received a telephone call from a very close friend, informing him of the JERKINGMAN ACCOUNT and told Mr. Caraccioli that he would report the ACCOUNT and request DEFENDANT FACEBOOK to delete the ERKINGMAN ACCOUNT and its obscene sexual content. 35. The phone call alleged in paragraph 33 was shortly followed by another call, from a family member this time, notifying Mr. Caraccioli about the ERKIN GMAN ACCOUNT and reassuring Mr. Caraccioli that she would report the ACCOUNT to DEFENDANT FACEBOOK and request to DEFENDANT FACEBOOK to delete the ACCOUNT and its obscene content. 36. These were a couple out of many calls, text messages, or emails, notifying Mr. Caraccioli of the ERKINGMAN ACCOUNT and informing him that a request had been made for DEFENDANT FACEBOOK to delete the ACCOUNT. 37. Some of these calls and/or messages were done solely to humiliate, mock, ridicule, or embarrass Mr. Caraccioli and were coming from people both in the United States and from other countries. 38. The following day, DEFENDANT FACEBOOK sent Mr. Caraccioli an email ADMITTIN that DEFENDANT ACEBOOK had received the previous noti?cations of the alleged ERKINGMAN ACCOUNT and claimed, ?We reviewed the ACCOUNT and determined 7 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Document8 FiledO9/21/15 Page8 of 38 that Franco Caracciolij erkingman is a person who?s using acebook in a way that follows the Facebook Community Standards.? 39. That email sent in paragraph 37 of this Complaint from DEFENDANT FACEBOOK to Mr. Caraccioli, is an ADMISSION that DEFENDANT FACEBOOK reviewed and entertained the content in the ERKINGMAN ACCOUNT which was conspicuously sexual in nature, establishing prima facie evidence that DEFENDANT FACEBOOK republished or recreated the ERKINGMAN ACCOUNT in WHOLE by continuing to display its sexual content with reckless disregard towards privacy or truth. 40. The facts in paragraph 38 constitutes republishing or recreating in whole the sexual content because it shows prima facie evidence that DEFENDANT FACEBOOK took af?rmative steps by ?reviewing and determining? to evaluate the [sexual] content in the ERKINGMAN ACCOUNT and recklessly disregarded its obscenity because DEFENDANT FACEBOOK claimed that the ERKINGMAN ACCOUNT was satisfying its community standards, thus, sponsoring, republishing, or recreating in whole the ACCOUNT by continuing to display its sexual content. 41. Taking af?rmative steps to review sexually explicit pornographic videos and images and determining that the content is in accordance with or following DEFENDANT ?Terms of Service,? is at best a conscious, gross negligent, intentional, willful or wonton, or RECKLESS DISREGARD towards DEFENDANT own ?Terms of service? and in violation of the legislative intent thrusting the CDA because children could and did in fact view the sexual obscene content in a place that is not protected or reserved for sexual content. 42. Following Section 3 and Section 5 of DEFENDANT ?Terms of Service,? DEFENDANT ADMISSION that the JERKINGMAN ACCOUNT ?Franco Caracciolijerkingman? is following Facebook Community Standards is a per se violation of DEFENDANT own ?Terms of Service? because those sections explicitly forbid publication of obscene sexual nature while assuring that such publications would be deleted. This ADMISSION constitutes reckless disregard because Defendant recklessly ?reviewed? or entertained the blatant sexual content in the JERKINGMAN ACCOUNT and instead of deleting it, recreated its obscenity by continuing to displaying the sexual content for the world and children to see. - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Document8 FiledO9/21/15 Page9 of 38 43. Subsequently, Mr. Caraccioli sent DEFENDANT ACEBOOK an email stating that Defendants? malicious, fraudulent, or reckless conduct in disregard to their own policies, ?Terms of Service,? community standards, and most importantly the privacy and rights of others, constitutes legal action and that such would be taken. 44. The following day and after ridiculing Mr. Caraccioli, DEFENDANT FACEBOOK deleted the JERKINGMAN ACCOUNT and its content, but only after the damage from contemplated republication or republication which was entertained, had already occurred and affected Mr. Caraccioli?s reputation by recreating or republishing the ERKINGMAN ACCOUNT because DEFENDANT FACEBOOK continued displaying the JERKINGMAN ACCOUNT a?er numerous indications to not do so. 45. Although Mr. Caraccioli did not save all of the images republished by DEFENDANT FACEBOOK in the JERKINGMAN ACCOUNT, however, upon discovery or from this court?s request, Mr. Caraccioli can prove the conspicuous sexual content in the JERKINGMAN ACCOUNT through ALL of the sexual images and videos that DEFENDANT FACEBOOK republished. This Action Is Brought Pursuant to the Communications and Degycv Act of 1996 47 U.S.C. 46. The Communications Decency Act hereinafter provides that provider or user of an interactive computer service shall be treated as the publisher or Speaker of any information provided by another information content provider? and (2) cause of action may be brought and no liability may be imposed under any State or local rule that is inconsistent with this section.? See 47 U.S.C. 230(c)(1) sew); and, Anthony v. Yahoo Inc., 421 F. Supp. 2d 1257, 1262 (N .D. Cal. 2006). 47. Section 23 de?nes ?interactive computer service? as ?any information service, system, or access software provider that provides or enables computer access by multiple users to a computer service, including speci?cally a service or system that provides access to the 48. An ?information content provider? is ?any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.? 47 U.S.C. 230(f)(3). Here, DEFENDANT FACEBOOK is - 9 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 PagelO of 38 acting as both, because after DEFENDANT ACEBOOK recklessly or maliciously ?reviewed and determined? that the ERKINGMAN ACCOUNT is following the Defendant?s own community standards, DEFENDANT FACEBOOK decided to recreate the ERKINGMAN ACCOUNT content by continuing to provide its publication of content that was obviously not meant for republication, recreation, global dissemination, and especially not meant for DEFENDANT own Website because it would speci?cally violate the ?community standards.? 49. ?Congress clearly enacted 230 to forbid the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.? See Anthony v. Yahoo Inc., at 1262; citing, Ben Ezra_., Weinstein, Company, Inc. v. America Online Inc., 206 F.3d 980, 986 (10th Cir.2000). However, Congress did not intend to provide absolute immunity or for these editorial functions to go completely un-scrutinized because this would allow defendants to mask, hide, or absolve liability for malicious, reckless, or even criminal republications. See generally Batzel v. Smith, at 1034. 50. Following 47 U.S.C. section 230(c)(3), nothing within its section shall be construed to prevent any State from enforcing any State law that is consistent with this section. 51. Although the legislative intent thrusting the CDA generally provides immunity for negligent republication, however, the CDA does not afford protection to RECKLESS or MALICIOUS conduct pertaining to the truth/falsity or privacy interests of the published or republished content. Carafano v. Metrosplashcom Inc., 339 F.3d 1119 (9th Cir. 2003). 52. Reckless disregard or WILLFUL BLINDNESS is NOT immune under 230(c)(3); and should not be tolerated by this court because ?[i]mmunizing individuals and entities in such situations also interferes with Congress's objective of providing incentives for providers and users of interactive computer services to remove offensive material, especially obscene and defamatory speech.? Batzel v. Smith, at 1034. 53. Causes of action might be premised on the publication or republication of actionable content such as negligent or intentional in?iction of emotional distress, negligent misrepresentation, and ordinary negligence, for false light, or even for negligent publication of advertisements that cause harm to third parties, thus, what matters is whether the cause of action inherently requires the -10- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Pagell of 38 court to treat the defendant as the ?publisher or speaker? of content provided by another, and if so, section 230(c)(1) precludes liability. Barnes v. Yahoo! Inc., 570 F.3d 1096, 1101-02 (9th Cir. 2009). Here, DEFENDANT FACEBOOK was RECKLESS or malicious, not negligent. 54. The CDA only entitles defendants not to be ?the publisher or speaker? of the pro?les, it does not absolve defendants from liability for any accompanying misrepresentations. Anthony v. Yahoo Inc., 421 F. Supp. 2d 1257, 1263 (N .D. Cal. 2006). Here, DEFENDANT FACEBOOK became a ?publisher or speaker? on behalf of the ERKINGMAN ACCOUNT by ?reviewing and determining? that it is in accordance with its ?community standards, and because DEFENDANT FACEBOOK misrepresented its legality, constituting fraud or malice/reckless disregard, the CDA should not absolve DEFENDANTS reckless conduct, and punitive damages should be reasonably considered by this court in order to deter future vvrongdoers. 55. Following precedent from this court, 53% dicta stands for the two propositions: (1) that section 23 grants immunity for negligent undertakings, promises, or steps taken to edit or publish an online post, or when a party engages in promises giving rise to an independent and enforceable contractual obligation, that party may be liable, not as a publisher or speaker of third-party content, but rather as a counter-party to a contract, as a promisor who has breached.? Goddard v. Goggle. Inc., 640 F. Supp. 2d 1193, 1200 (N .D. Cal. 2009). 56. Mr. Caraccioli kindly reminds this court that DEFENDANT FACEBOOK engaged in RECKLESS or MALICIOUS undertakings or steps in ?reviewing? actual pornographic content and ?determined? it was not obscene, because unless one is blind, pornographic content should be self- evident, especially if the words ERKINGMAN precede it?s content. Following the words of Mr. Chief Justice Stewart when depicting determining the imagery of pornographic content, know it when I see it.?Jacobellis v. State of Ohio, 378 US. 184, 197 (1964). 57. Immunizing malicious or reckless behavior would render 230 unconstitutionally under and over-inclusive if challenged by the First, Fifth, and/or Fourteenth Amendments of the United States Constitution. Reno v. Am. Civ. Liberties Union, 521 US. 844, 868, 874-86 (1997). 58. publisher reviews material submitted for publication, perhaps edits it for style or technical ?uency, and then decides whether to publish it.? E. - 11 FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4145-EJD Document8 FiledO9/21/15 Page12 of 38 59. A publishers conduct is actionable under the CDA when such conduct involves contemplating or entertaining publication of offensive pro?les. m. at 1103. Here, it is evident that DEFENDANT conduct is actionable because by ?reviewing? Facebook entertained the sexual in the ERKINGMAN ACCOUNT [See Exhibit 1] and endorsed its content by republishing or recreating in whole or continuing to display its sexual content online with reckless disregard pertaining to its obscene content, Mr. Caraccioli?s privacy rights, and the sociological or repercussions of such reckless republication due to its sensible and offensive content. FIRST CAUSE OF ACTION (Defamation) (Against All Defendants) 60. The true names of defendants DOES 1 through 10, inclusive, are unknown to Mr. Caraccioli at this time. Mr. Caraccioli sues those defendants by such ?ctitious names pursuant to section 474 of the Code of Civil Procedure. 61. Mr. Caraccioli is informed and believes, and based on that information and belief alleges, that each of the defendants designated as a DOE is legally responsible for the events and happenings referred to in this complaint, and unlawfully caused the injuries and damages to Mr. Caraccioli alleged in this complaint. 62. Mr. Caraccioli is informed and believes, and based on that information and belief alleges, that at all times mentioned in this complaint, DOES 1 through 10 were the agents and employees of their codefendants or DEFENDANT FACEBOOK, and in doing the things alleged in this complaint were acting within the course and scope of such agency and employment. 63. ?Agency is the ?duciary relationship that arises when one person (a ?principal?) manifests assent to another person (an ?agent?) that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act.? Batzel v. Smith, 333 F.3d 1018, 1035 (9th Cir. 2003). Here, there is an agency relationship presumption between DOES 1 through 10 and DEFENDANT ACEBOOK because only the Defendant?s employees should be allowed to review and determine lawful content publication. - 12 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4145-EJD Document8 FiledO9/21/15 Page13 of 38 64. On September 14, 2014, DEFENDANT FACEBOOK intentionally or recklessly republished sexually obscene content about Mr. Caraccioli in its Website because DEFENDANT FACEBOOK entertained the ERKINGMAN sexual content by reviewing the ACCOUNTS content [see Exhibit 1] and continued to republish the content by continuing to display the JERKINGMAN ACCOUNT along with its content. Therefore, DEFENDANT FACEBOOK endorsed or sponsored the ERKINGMAN ACCOUNT by republishing or recreating in whole the content because DEFENDANT FACEBOOK admitted that its pornographic content was not in violation of its ?Community Standards.? 65. The Franco Caracciolijerkingman Account was concerning Mr. Caraccioli because the ERKINGMAN ACCOUNT referred to Mr. Caraccioli by name throughout, was made of and concerning Mr. Caraccioli physically, and was so understood by those who read or saw it. 66. The entire JERKINGMAN ACCOUNT was false as it pertains to Mr. Caraccioli in name, imagery, and display and diminished his reputation based on the mock and ridicule he experienced. 67. The JERKINGMAN ACCOUNT was libelous on its face because it clearly exposed Mr. Caraccioli to hatred, contempt, ridicule and obloquy. Further, the JERKINGMAN content was pertaining Mr. Caraccioli?s privacy and involved extremely sensitive material under a reasonable person standard because any person holds their genitalia as a private part due to is sensitive material. 68. Moreover, the republishing or recreating in whole constitutes libel per se because of the amount of people that were exposed to Mr. Caraccioli?s privacy though set forth herein. 69. Mr. Caraccioli is informed and believes, and based thereon alleges, that on or about September 14, 2014 DEFENDANT ACEBOOK and DOES 1 through 10, conspired to republish the ERKIN GMAN ACCOUNT. 70. The ERKINGMAN ACCOUNT referenced above was false and defamatory and were made by DEFENDANT FACEBOOK with knowledge of their falsity or with reckless disregard for their truth pursuant to a conspiracy. DEFENDANT FACEBOOK referred to Mr. -13- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Pagel4 of 38 Caraccioli by name or innuendo and those who read or saw the JERKINGMAN ACCOUNT understood they concerned Mr. Caraccioli. 71. The JERKINGMAN ACCOUNT was seen and read on or about September 14, 2014 by thousands of individuals worldwide, children, or anyone who received a friend request or saw the JERKINGMAN ACCOUNT. Speci?c names are ascertainable and can be given upon discovery. 72. The above-described republication was not privileged because it was published by DEFENDANT FACEBOOK with conscious or reckless disregard as to the falsity or obscene sexual content, therefore establishing malice, hatred and ill will toward Mr. Caraccioli or the desire to injure Mr. Caraccioli. 73. Because of DEFENDANT amount to willful blindness, reckless disregard, or malice in republishing or recreating in whole, Mr. Caraccioli seeks punitive damages in a total amount to be established by proof at trial. 74. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 75. Punitive damages are awarded whenever malice, gross negligent, or conscious/reckless disregard conduct as to the falsity of the statement, is found against the defendant on the underlying claims, regardless of whether actual damages are neither found nor shown. Nil! York Times Co. v. Sullivan, 376 US. 254, 262 (1964). 76. DEFENDANT FACEBOOK acted with malice or reckless disregard towards Mr. Caraccioli?s the truth or falsity of the ERKINGMAN ACCOUNT because DEFENDANT FACEBOOK reviewed the obscenity of the ERKINGMAN ACCOUNT which conspicuously showed Mr. Caraccioli naked, and determined it was good for republication. 77. As a proximate result from republishing or recreating in whole the sexual content in the ERKINGMAN ACCOUNT referenced above, Mr. Caraccioli has suffered, and will continue to suffer, loss of reputation along with shame, morti?cation, and hurt feelings because of the quantity of people who saw the JERKINGMAN ACCOUNT and/or personally kept or copied the images or videos in the ACCOUNT. Therefore, Mr. Caraccioli suffered and will suffer in the future, general - 14 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page15 of 38 and special damages including but not limited to, damages for expenses, lost income and damage to her trade, profession, and occupation in a sum not yet capable of ascertainment other than the fact that the sum exceeds this Court?s jurisdictional minimum, but in no event less than $100,000.00. 78. The aforementioned wrongful acts of Defendants were done intentionally or with a conscious/reckless disregard of Mr. Caraccioli rights, and with the intent to vex, injure or annoy Mr. Caraccioli such as to constitute oppression, fraud, or malice, thus entitling Mr. Caraccioli to exemplary and punitive damages in an amount appropriate to punish or to set an example of Defendants and each of them, and to deter such conduct in the future, which amount will be proved at trial, but in no event should be less than $1,000,000.00. 79. The Communications Decency Act 47 U.S.C.A. 230 does not grant immunity for reckless conduct in disregard for the truth because the congressional objectives in passing 230 are not furthered by providing immunity in instances where posted reposted material is clearly not meant for publication. Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003). SECOND CAUSE OF ACTION (LIBEL PER SE) (Against All Defendants) 80. A libel which is defamatory of Mr. Caraccioli without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless Mr. Caraccioli alleges and proves that he has suffered Special damage as a proximate result thereof. Cal. Civ. Code Ann. 45a. 81. In other words, a defamatory statement about Mr. Caraccioli that is communicated in a ?xed medium and is considered to be so harmful on its face, Mr. Caraccioli need not prove special damages. Examples of libel per se are statements that: relate to the person?s business or profession to the person?s detriment; (ii) falsely claim that the person committed a crime of moral turpitude; imputes unchastity on the person; or (iv) claim that the person suffers from a loathsome disease. -15- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page16 of 38 82. DEFENDANT conduct constitutes libel per se because acebook republished the ERKINGMAN ACCOUNT that imputes unchastity upon Mr. Caraccioli and republication was over the intemet, which is a ?xed medium. 83. The libelous statement was concerning Mr. Caraccioli because the JERKINGMAN ACCOUNT mentioned Mr. Caraccioli by name and depicted actual sexual videos or images of Mr. Caraccioli. 84. The ERKINGMAN ACCOUNT was seen and read on or about September 14, 2014 by thousands of individuals worldwide, children, or anyone who received a friend request from the ERKINGMAN ACCOUNT. Speci?c names are ascertainable and can be given upon discovery. 85. The above-described republication was not privileged because it was published by Defendants with conscious or reckless disregard as to the falsity or obscene sexual content, establishing malice, hatred and ill will toward Mr. Caraccioli or the desire to injure Mr. Caraccioli. 86. Because of DEFENDANT malice in republishing or recreating in whole, Mr. Caraccioli seeks punitive damages in a total amount to be established by proof at trial. 87. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 88. The ACCOUNT referenced above are false and defamatory and were made by DEFENDANT ACEBOOK with knowledge of their falsity or with reckless disregard for their truth pursuant to a conSpiracy. They referred to Mr. Caraccioli by name or innuendo and those who read or saw the JERKINGMAN ACCOUNT understood they concerned Mr. Caraccioli. 89. The JERKINGMAN ACCOUNT referenced above was libelous on its face or and thus, damages are presumed and exemplary. The JERKINGMAN ACCOUNT clearly exposed Mr. Caraccioli to hatred, contempt, ridicule and/or obloquy because they charge Mr. Caraccioli with crimes and have the tendency to injure Mr. Caraccioli?s general and professional reputation because they suggest Mr. Caraccioli is a criminal and untrustworthy. -16- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Pagel? of 38 90. Punitive damages are awarded whenever malice, gross negligent, or conscious/reckless disregard conduct as to the falsity of the statement, is found against the defendant on the underlying claims, regardless of whether actual damages are neither found nor shown. Neg York Times Co. v. Sullivan, 376 US. 254, 262 (1964). 91. DEFENDANT FACEBOOK acted with malice or reckless disregard towards Mr. Caraccioli?s pertaining to the truth or falsity of the JERKINGMAN ACCOUNT because DEFENDANT FACEBOOK reviewed the obscenity of the JERKINGMAN ACCOUNT which conspicuously showed Mr. Caraccioli naked, and determined it was good for republication. 92. As a proximate result from republishing or recreating in whole the sexual content in the JERKINGMAN ACCOUNT referenced above, Mr. Caraccioli has suffered, and will continue to suffer, loss of reputation along with shame, morti?cation, and hurt feelings because of the quantity of people who saw the ERKINGMAN ACCOUNT and personally kept and/or copied the images or videos in the ACCOUNT. Therefore, Mr. Caraccioli suffered and will suffer in the future, general and special damages including but not limited to, damages for expenses, lost income and damage to her trade, profession, and occupation in a sum not yet capable of ascertainment other than the fact that the sum exceeds this Court's jurisdictional minimum, but in no event less than $100,000.00. 87. The aforementioned wrongful acts of Defendants were done intentionally or with a conscious disregard of Mr. Caraccioli?s rights, and with the intent to vex, injure or annoy Mr. Caraccioli such as to constitute oppression, fraud, or malice, thus entitling Mr. Caraccioli to exemplary and punitive damages in an amount appropriate to punish or to set an example of Defendants and each of them, and to deter such conduct in the future, which amount will be proved at trial, but in no event should be less than $1,000,000.00. 93. The Communications Decency Act 47 U.S.C.A. 230 does not grant immunity for reckless conduct in disregard for the truth because the congressional objectives in passing 230 are not furthered by providing immunity in instances where posted reposted material is clearly not meant for publication. Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003). 17 FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4145-EJD Document8 FiledO9/21/15 Page18 of 38 THIRD CAUSE OF ACTION (Invasion of Privacy Upon the Solitude or Seclusion of Mr. Caraccioli) (Against All Defendants) 94. Mr. Caraccioli realleges and incorporates by reference the allegations contained in paragraphs 1 through 93 above. 95. All Defendants violated Mr. Caraccioli?s personal privacy by continuing to broadcast worldwide over its Website, sexually obscene content regarding Mr. Caraccioli that was not meant for public dissemination. 96. The sexual content exposing Mr. Caraccioli in the JERKINGMAN ACCOUNT would be highly offensive to a reasonable person because it involved showing Mr. Caraccioli?s genitalia. 97. The precise republishing or recreating in whole of the ERKINGMAN ACCOUNT constituted the invasion of privacy are set forth in the aforementioned paragraphs and are incorporated herein by reference. 98. The ERKINGMAN ACCOUNT was seen and read on or about September 14, 2014 by thousands of individuals worldwide, children, or anyone who received a friend request from the ERKINGMAN ACCOUNT or saw the JERKINGMAN ?Franco Caracciolij erkingman? ACCOUNT. Speci?c names are ascertainable and can be given upon discovery. 99. The above-described republication was not privileged because it was published by DEFENDANT FACEBOOK with conscious or reckless disregard as to the falsity or obscene sexual content, establishing malice, hatred and ill will toward Mr. Caraccioli or the desire to injure Mr. Caraccioli. 100. Because of DEFENDANT malice in republishing or recreating in whole, Mr. Caraccioli seeks punitive damages in a total amount to be established by proof at trial. 101. Under invasion of privacy cases involving punitive damages, the applicable standard is common-law malice?frequently expressed in terms of either reckless or wanton disregard of Mr. Caraccioli?s rights or personal ill will?focuses on the defendant's attitude toward Mr. Caraccioli?s -18- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page19 of 38 privacy, not toward the truth or falsity of the material published. Cantrell v. Forest City Pub. Co., 419 US. 245, 252 (1974). 02. Caraccioli?s privacy rights because DEFENDANT FACEBOOK reviewed the obscenity of the DEFENDANT FACEBOOK acted with malice or reckless disregard towards Mr. ERKINGMAN ACCOUNT which conspicuously showed Mr. Caraccioli engaging in pornographic content, and determined it was good for republication and worldwide dissemination, which would include children viewing it or the possibility thereof. 103. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 104. As a proximate result from republishing or recreating in whole the sexual content in the ERKINGMAN ACCOUNT referenced above, Mr. Caraccioli has suffered, and will continue to suffer, loss of reputation along with shame, morti?cation, and hurt feelings because of the quantity of people who saw the ERKINGMAN ACCOUNT and personally kept and/or copied the images or videos in the ACCOUNT. Therefore, Mr. Caraccioli suffered and will suffer in the future, general and special damages including but not limited to, damages for expenses, lost income and damage to her trade, profession, and occupation in a sum not yet capable of ascertainment other than the fact that the sum exceeds this Court's jurisdictional minimum, but in no event less than $100,000.00. 105. The aforementioned wrongful acts of Defendants were done intentionally or with a conscious disregard of Mr. Caraccioli?s rights, and with the intent to vex, injure or annoy Mr. Caraccioli such as to constitute oppression, fraud, or malice, thus entitling Mr. Caraccioli to exemplary and punitive damages in an amount appropriate to punish or to set an example of Defendants and each of them, and to deter such conduct in the ?iture, which amount will be proved at trial, but in no event should be less than $1,000,000.00. 106. The Communications Decency Act 47 U.S.C.A. 230 does not grant immunity for reckless conduct in disregard for the truth because the congressional objectives in passing 230 are -19- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page20 of 38 not ?n'thered by providing immunity in instances where posted reposted material is clearly not meant for publication. Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003). FOURTH CAUSE OF ACTION (Invasion of Privacy through Public Disclosure of Private Facts) (Against All Defendants) 107. A claim of invasion of privacy by public disclosure of private facts, under California law, requires (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public interest. Carafano v. Metrosplash.com Inc., 207 F. Supp. 2d 1055 (CD. Cal. 2002). 108. Mr. Caraccioli realleges and incorporates by reference the allegations contained in paragraphs 1 through 106 above. 109. Since Mr. Caraccioli is not a public ?gure, exposing his genitalia is not in the public?s interest. 110. This sexual content would be highly offensive and objectionable to a reasonable person because it involved the showing of Mr. Caraccioli?s genitalia. 111. The precise republishing or recreating in whole of the JERKINGMAN ACCOUNT constituted the invasion of privacy are set forth in the aforementioned paragraphs and are incorporated herein by reference. 112. The JERKINGMAN ACCOUNT was seen and read on or about September 14, 2014 by thousands of individuals worldwide, children, or anyone who received a friend request from the ERKINGMAN ACCOUNT or saw the ERKINGMAN ?Franco Caracciolijerkingman? ACCOUNT. Speci?c names are ascertainable and can be given upon discovery. 1 13. The above-described republication was not privileged because it was published by DEFENDANT FACEBOOK with conscious or reckless disregard as to the falsity or obscene sexual content, establishing malice, hatred and ill will toward Mr. Caraccioli or the desire to injure Mr. Caraccioli. 114. Because of DEFENDANT malice in republishing or recreating in whole, Mr. Caraccioli seeks punitive damages in a total amount to be established by proof at trial. -20- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page21 of 38 115. Under invasion of privacy cases, the applicable standard is common-law malice-? ?equently expressed in terms of either reckless or wanton disregard of Mr. Caraccioli?s rights or personal ill will?would focus on the defendant?s attitude toward Mr. Caraccioli?s privacy, not toward the truth or falsity of the material published. Cantrell v. Forest Ci? Pub. Co., 419 U.S. 245, 252 (1974). 116. DEFENDANT FACEBOOK acted with malice or reckless disregard towards Mr. Caraccioli?s privacy rights because DEFENDANT FACEBOOK reviewed the obscenity of the ERKINGMAN ACCOUNT which conspicuously showed Mr. Caraccioli naked, and determined it was good for republication. 117. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 118. As a proximate result from republishing or recreating in whole the sexual content in the ERKIN GMAN ACCOUNT referenced above, Mr. Caraccioli has suffered, and will continue to suffer, loss of reputation along with shame, mortification, and hurt feelings because of the quantity of people who saw the ERKINGMAN ACCOUNT and personally kept and/or copied the images or videos in the ACCOUNT. Therefore, Mr. Caraccioli suffered and will suffer in the future, general and special damages including but not limited to, damages for expenses, lost income and damage to her trade, profession, and occupation in a sum not yet capable of ascertainment other than the fact that the sum exceeds this Court's jurisdictional minimum, but in no event less than $100,000.00. 119. The aforementioned wronng acts of Defendants were done intentionally or with a conscious disregard of Mr. Caraccioli?s rights, and with the intent to vex, injure or annoy Mr. Caraccioli such as to constitute oppression, fraud, or malice, thus entitling Mr. Caraccioli to exemplary and punitive damages in an amount appropriate to punish or to set an example of Defendants and each of them, and to deter such conduct in the future, which amount will be proved at trial, but in no event should be less than $1,000,000.00. -21- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page22 of 38 120. The Communications Decency Act 47 U.S.C.A. 230 does not grant immunity for reckless conduct in disregard for other?s privacy rights because the congressional objectives in passing 230 are not furthered by providing immunity in instances where posted reposted material is clearly not meant for publication. Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003). FIFTH CAUSE OF ACTION (Invasion of Privacy by Portraying Mr. Caraccioli in False Light) (All Defendants) 121. The Supreme Court of The United States has said that recovery for false light must meet the same constitutional standards applied in defamation action. Time Inc. v. Hill, 385 US. 374, 388-91 (1967). 122. Mr. Caraccioli realleges and incorporates by reference the allegations contained in paragraphs 60 through 79 above. 123. The ERKINGMAN sexual content would be highly offensive to a reasonable person because it involved showing Mr. Caraccioli?s genitalia. 124. Mr. Caraccioli is informed and believes, and thereupon alleges, that on or about September 14, 2014, Defendants, without Mr. Caraccioli?s consent, conspired to place Mr. Caraccioli in a false light, and did in fact, place Mr. Caraccioli in a false light by republishing or recreating in whole the ERKINGMAN ACCOUNT via Defendant?s Website, which wrongly and falsely depicted Mr. Caraccioli as being a person who engages in unethical, illegal and improper behavior. 125. The precise republishing or recreating in whole of the JERKINGMAN ACCOUNT constituted the invasion of privacy are set forth in the aforementioned paragraphs and are incorporated herein by reference. 126. The republishing or recreating the JERKINGMAN ACCOUNT in whole by DEFENDANT FACEBOOK placed Mr. Caraccioli in a false light in the public by conveying the message that Mr. Caraccioli was engaged in unethical, illegal, and improper behavior including, but not limited to, fraud or deceit. -22- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4145-EJD Document8 FiledO9/21/15 Page23 of 38 127. DEFENDANT republishing or recreating the JERKINGMAN ACCOUNT in whole was offensive and objectionable to Mr. Caraccioli, and would be to a reasonable person of ordinary sensibilities. The republishing or recreating in whole injured Mr. Caraccioli?s professional reputation and made Mr. Caraccioli the object of scorn and ridicule to Mr. Caraccioli?s current employer, thus causing extreme emotional distress and injury to Mr. Caraccioli. 128. The JERKINGMAN ACCOUNT was seen and read on or about September 14, 2014 by thousands of individuals worldwide, children, or anyone who received a friend request from the JERKINGMAN ACCOUNT. Speci?c names are ascertainable and can be given upon discovery. 129. The above-described republication was not privileged because it was published by Defendants with conscious or reckless disregard as to the falsity or obscene sexual content, establishing malice, hatred and ill will toward Mr. Caraccioli or the desire to injure Mr. Caraccioli. 130. Because of DEFENDANT malice in republishing or recreating in whole, Mr. Caraccioli seeks punitive damages in a total amount to be established by proof at trial. 131. Under invasion of privacy cases, the applicable standard is common-law malice? frequently expressed in terms of either reckless or wanton disregard of Mr. Caraccioli?s rights or personal ill will?would focus on the defendant's attitude toward Mr. Caraccioli?s privacy, not toward the truth or falsity of the material published. Cantrell v. Forest City Pub. Co., 419 US. 245, 252 (1974). 132. DEFENDANT FACEBOOK acted with malice or reckless disregard towards Mr. Caraccioli?s privacy rights because DEFENDANT FACEBOOK reviewed the obscenity of the ERKINGMAN ACCOUNT which conspicuously showed Mr. Caraccioli naked, and determined it was good for republication. 133. Mr. Caraccioli is informed and believes, and on that basis alleges, that the aforementioned statements made by Defendants were made with actual malice and with knowledge that each such statement was false and would place Mr. Caraccioli in a false light, or were published with reckless disregard for the truth or falsity of such statements pursuant to a conspiracy among Defendants, each and every one of them. IN 23 FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4145-EJD Document8 FiledO9/21/15 Page24 of 38 134. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 135. As a proximate result from republishing or recreating in whole the sexual content in the ERKINGMAN ACCOUNT, Mr. Caraccioli has suffered, and will continue to suffer, loss of reputation along with shame, morti?cation, and hurt feelings because of the quantity of people who saw the ERKINGMAN ACCOUNT and personally kept, copied, and/or distributed the images or videos in the ACCOUNT. Therefore, Mr. Caraccioli suffered and will suffer in the future, general and special damages including but not limited to, damages for expenses, lost income and damage to her trade, profession, and occupation in a sum not yet capable of ascertainment other than the fact that the sum exceeds this Court's jurisdictional minimum, but in no event less than $100,000.00. 136. The aforementioned wrongful acts of Defendants were done intentionally or with a conscious disregard of Mr. Caraccioli?s rights, and with the intent to vex, injure or annoy Mr. Caraccioli such as to constitute oppression, fraud, or malice, thus entitling Mr. Caraccioli to exemplary and punitive damages in an amount appropriate to punish or to set an example of Defendants and each of them, and to deter such conduct in the future, which amount will be proved at trial, but in no event should be less than $1,000,000.00. 137. The Communications Decency Act 47 U.S.C.A. 230 does not grant immunity for reckless conduct in disregard for other?s privacy rights because the congressional objectives in passing 230 are not ?irthered by providing immunity in instances where posted reposted material is clearly not meant for publication. Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003). SIXTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress) (Against All Defendants) 138. To prevail on such a claim, a Mr. Caraccioli must generally prove that (1) a defendant engaged in ?extreme and outrageous conduct,? (2) the defendant intentionally or recklessly in?icted emotional distress on Mr. Caraccioli, and (3) defendant's actions actually resulted in severe 24 FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page25 of 38 emotional distress. Any claim of outrage must be predicated on behavior so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. 139. Mr. Caraccioli realleges and incorporates by reference the allegations contained in paragraphs 1 through 137 above. 140. Based on the above alleged acts, DEFENDANT misconduct was extreme, outrageous and done with the intent to cause emotional distress or with reckless disregard of the probability of causing Mr. Caraccioli emotional distress. 141. Republishing or recreating in whole pornographic content in violation of Defendant?s own ?Terms of Service,? while claiming that the pornographic content is not obscene in nature is beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. 142. Defendants, and each of them, as aforesaid, were intentional, extreme, and outrageous, causing Mr. Caraccioli emotional distress by republishing or recreating in whole the sexual content in violation of Defendant?s own ?Terms of Service? and more importantly, in violation of Legislative intent and policy pursuant to The Communications Decency Act 47 U.S.C.A. 230. 143. The JERKINGMAN ACCOUNT was seen and read on or about September 14, 2014 by thousands of individuals worldwide, children, or anyone who received a friend request from the JERKINGMAN ACCOUNT. Speci?c names are ascertainable and can be given upon discovery. 144. The above-described republication was not privileged because it was published by Defendants with conscious or reckless disregard as to the falsity or obscene sexual content, establishing malice, hatred and ill will toward Mr. Caraccioli or the desire to injure Mr. Caraccioli. 145. Because of DEFENDANT malice in republishing or recreating in whole, Mr. Caraccioli seeks punitive damages in a total amount to be established by proof at trial. 146. Punitive damages in emotional distress cases are awarded when ?the defendant's conduct involves reckless or callous indifference to the federally protected rights of others, or -25- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page26 of 38 motivated by evil motive or intent. See Smith v. Wade 461 US. 30, 103 1625, 1640, 75 L.Ed.2d 632 (1983) and Moc?er v. Multnomah County, 141 F.3d 1177 (9th Cir. 1998). 147. Caraccioli?s privacy rights because DEFENDANT FACEBOOK reviewed the obscenity of the DEFENDANT ACEBOOK acted with malice or reckless disregard towards Mr. JERKINGMAN ACCOUNT which conspicuously showed Mr. Caraccioli naked, and determined it was good for republication. 148. As a direct and proximate result of the DEFENDANT conduct, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has been subjected to severe emotional distress and will continue to suffer severe and permanent humiliation, mental pain and anguish, and will continue to live in a constant state of emotional tension and distress because of the amount of people who saw the obscene content in the JERKINGMAN ACCOUNT sexually exposing Mr. Caraccioli, or kept a copy of the images or video. 149. As a direct and proximate result of the DEFENDANT and each of their actions, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has suffered severe and serious injury to her person, all to Mr. Caraccioli?s damage in a sum within the jurisdiction of this Court and to be shown according to proof. 150. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 151. As a direct and proximate result of the DEFENDANT conduct, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has suffered and continues to suffer substantial losses in income, earnings, and bene?ts and has been damaged in her capacity to earn her salary, and has lost and will continue to lose employment bene?ts because of the amount of people who saw the obscene content in the ERKINGMAN ACCOUNT sexually exposing Mr. Caraccioli, or kept a copy of the images or video. 152. In committing the aforesaid wrongful acts, DEFENDANT FACEBOOK acted with malice or reckless disregard of Mr. Caraccioli?s rights and interests, thereby entitling Mr. Caraccioli to an award of punitive and exemplary damages. -25- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page27 of 38 153. The JERKINGMAN ACCOUNT was seen and read on or about September 14, 2014 by thousands of individuals worldwide, children, or anyone who received a friend request from the JERKINGMAN ACCOUNT. Speci?c names are ascertainable and can be given upon discovery. 154. The above-described republication was not privileged because it was published by Defendants with conscious or reckless disregard as to the falsity or obscene sexual content, establishing malice, hatred and ill will toward Mr. Caraccioli or the desire to injure Mr. Caraccioli. 155. Because of DEFENDANT malice in republishing or recreating in whole, Mr. Caraccioli seeks punitive damages in a total amount to be established by proof at trial. 156. As a direct and proximate result of DEFENDANT conduct, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has been subjected to severe emotional distress and will continue to suffer severe and permanent humiliation, mental pain and anguish, and will continue to live in a constant state of emotional tension and distress because of the amount of people who saw the obscene content in the JERKINGMAN ACCOUNT sexually exposing Mr. Caraccioli, or kept a copy of the images or video. 157. As a direct and proximate result of the DEFENDANT conduct, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has suffered and continues to suffer substantial losses in income, earnings, and bene?ts and has been damaged in her capacity to earn her salary, and has lost and will continue to lose employment bene?ts. 158. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 159. As a direct and proximate result of the Defendants, and each of their actions, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has suffered severe emotional distress and serious injury to her person because of the amount of people who saw the ERKINGMAN sexual content and/or made a copy of the sexual images or video, all to Mr. Caraccioli?s damage in a sum within the jurisdiction of this Court and to be shown according to proof, but in no event less than $100,000.00. 87. The aforementioned wrong?il acts of Defendants were done intentionally or with a -27- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page28 of 38 conscious disregard of Mr. Caraccioli?s rights, interests, well-being, and with the intent to vex, injure or armoy Mr. Caraccioli such as to constitute Oppression, fraud, or malice, thus entitling Mr. Caraccioli to exemplary and punitive damages in an amount appropriate to punish or to set an example of Defendants and each of them, and to deter such conduct in the future, which amount will be proved at trial, but in no event should be less than $1,000,000.00. 160. The Communications Decency Act 47 U.S.C.A. 230 does not grant immunity for reckless conduct in disregard for other?s privacy rights because the congressional objectives in passing 230 are not furthered by providing immunity in instances where posted reposted material is clearly not meant for publication. Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003). SEVENTH CAUSE OF ACTION (Negligent Infliction of Emotional Distress) {Against All Defendants) 161. Mr. Caraccioli realleges and incorporates by reference the allegations contained in paragraphs 1 through 160 above. 1 62. DEFENDANT ACEBOOK breached this duty by republishing or recreating in whole the Facebook owed a duty to Mr. Caraccioli based on the ?Terms of Service? agreed and JERKINGMAN ACCOUNT 163. Defendants, and each of them, as aforesaid, were intentional, extreme, and outrageous, causing Mr. Caraccioli emotional distress because DEFENDANT FACEBOOK reviewed and republished the sexual content in violation of Defendant?s own ?Terms of Service? and more importantly, in violation of Legislative intent and policy pursuant to The Communications Decency Act 47 U.S.C.A. 230. 164. Punitive damages in emotional distress cases are awarded when ?the defendant's conduct involves reckless or callous indifference to the federally protected rights of others, or motivated by evil motive or intent. See Smith v. Wade 461 US. 30, 103 1625, 1640, 75 L.Ed.2d 632 (1983); and Mockler v. Multnomah Conny, 141 F.3d 1177 (9th Cir. 1998). 1 65. Caraccioli?s privacy rights because DEFENDANT ACEBOOK reviewed the obscenity of the DEFENDANT FACEBOOK acted with malice or reckless disregard towards Mr. -28- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page29 of 38 ERKINGMAN ACCOUNT which conspicuously showed Mr. Caraccioli naked, and determined it was good for republication. 166. As a direct and proximate result of the DEFENDANT conduct, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has been subjected to severe emotional distress and will continue to suffer severe and permanent humiliation, mental pain and anguish, and will continue to live in a constant state of emotional tension and distress because of the amount of people who saw the obscene content in the ERKINGMAN ACCOUNT sexually exposing Mr. Caraccioli, or kept a copy of the images or video. 167. As a direct and proximate result of the Defendants, and each of their actions, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has suffered severe and serious injury to her person, all to Mr. Caraccioli?s damage in a sum within the jurisdiction of this Court and to be shown according to proof. 168. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 169. As a direct and proximate result of the DEFENDANT conduct, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has suffered and continues to suffer substantial losses in income, earnings, and bene?ts and has been damaged in her capacity to earn her salary, and has lost and will continue to lose employment bene?ts because of the amount of people who saw the obscene content in the ERKINGMAN ACCOUNT sexually exposing Mr. Caraccioli, or kept a copy of the images or video. 170. In committing the aforesaid wrongful acts, Defendants acted with malice, oppression, and disregard of Mr. Caraccioli?s rights and interests, thereby entitling Mr. Caraccioli to an award of punitive and exemplary damages. 171 . The JERKINGMAN ACCOUNT was seen and read on or about September 14, 2014 by thousands of individuals worldwide, children, or anyone who received a friend request from the ERKINGMAN ACCOUNT. Speci?c names are ascertainable and can be given upon discovery. -29- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4145-EJD Document8 FiledO9/21/15 Page30 of 38 172. The above-described republication was not privileged because it was published by Defendants with conscious or reckless disregard as to the falsity or obscene sexual content, establishing malice, hatred and ill will toward Mr. Caraccioli or the desire to injure Mr. Caraccioli. 173. Because of DEFENDANT malice in republishing or recreating in whole, Mr. Caraccioli seeks punitive damages in a total amount to be established by proof at trial. 174. As a direct and proximate result of DEFENDANT conduct, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has been subjected to severe emotional distress and will continue to suffer severe and permanent humiliation, mental pain and anguish, and will continue to live in a constant state of emotional tension and distress because of the amount of pe0ple who saw the obscene content in the JERKINGMAN ACCOUNT sexually exposing Mr. Caraccioli, or kept a copy of the images or video. 175. As a direct and proximate result of the DEFENDANT conduct, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has suffered and continues to suffer substantial losses in income, earnings, and bene?ts and has been damaged in her capacity to earn her salary, and has lost and will continue to lose employment bene?ts. 176. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 177. As a direct and proximate result of the Defendants, and each of their actions, Mr. Caraccioli is informed and believes, and based thereon alleges, that Mr. Caraccioli has suffered severe emotional distress and serious injury to her person because of the amount of people who saw the ERKINGMAN sexual content and/or made a copy of the sexual images or video, all to Mr. Caraccioli?s damage in a sum within the jurisdiction of this Court and to be shown according to proof, but in no event less than $100,000.00. 87. The aforementioned wrongful acts of Defendants were done intentionally or with a conscious disregard of Mr. Caraccioli?s rights, interests, well-being, and with the intent to vex, injure or annoy Mr. Caraccioli such as to constitute oppression, fraud, or malice, thus entitling Mr. Caraccioli to exemplary and punitive damages in an amount appropriate to punish or to -30- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page31 of 38 set an example of Defendants and each of them, and to deter such conduct in the future, which amount will be proved at trial, but in no event should be less than $1,000,000.00. 178. The Communications Decency Act 47 U.S.C.A. 230 does not grant immunity for reckless conduct in disregard for other?s privacy rights because the congressional objectives in passing 230 are not furthered by providing immunity in instances where posted reposted material is clearly not meant for publication. Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003). EIGHTH CAUSE OF ACTION (?reach of Contract Pursuant to DEFENDANT ?Terms of Service Agreement? (Against All Defendants! 179. Mr. Caraccioli realleges and incorporates by reference the allegations contained in paragraphs 1 through 178 above. 180. Pursuant to section 3 regarding safety and section 5 regarding the protection of user?s rights located in DEFENDANT ?Terms of Service Agreement,? DEFENDANT ADMISSION that Franco Caracciolijerkingman is following Facebook Community Standards is a per se violation of DEFENDANT own ?Terms of Service? and constitutes breach of Defendant?s contractual duties because the ?Terms of Service? section 3 and 5 [see Exhibit 2] states: ?You will not post content that: is hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence? and ?We can remove any content or information you post on acebook if we believe that it violates this Statement or our policies,? respectively. 1 8 1 . Service? because DEFENDANT FACEBOOK republished sexually obscene and highly offensive DEFENDANT FACEBOOK breached their contractual duty under the ?Terms of material about Mr. Caraccioli, material that DEFENDANT FACEBOOK was under a duty to remove. 182. The JERKINGMAN ACCOUNT was seen and read on or about September 14, 2014 thousands of individuals worldwide, children, or anyone who received a friend request from the JERKINGMAN ACCOUNT. Specific names are ascertainable and can be given upon discovery. 31 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page32 of 38 183. The above-described republication was not privileged because it was republished by DEFENDANT FACEBOOK with conscious or reckless disregard as to the falsity or obscene sexual content, establishing malice, hatred and ill will toward Mr. Caraccioli or the desire to injure Mr. Caraccioli. 184. Because of DEFENDANT malice in republishing or recreating in whole, Mr. Caraccioli seeks punitive damages in a total amount to be established by proof at trial. 185. Punitive damages are generally not recoverable for breach of contract unless the conduct constituting the breach is also a tort. See In re Late Fee and Over-Limit Fee Litig,, 741 F.3d 1022, 1026 (9th Cir. 2014) cert. denied sub nom; Pinon v. Bank of Am., NA, 134 S. Ct. 2878 (2014); and Restatement (Second) of Contracts 8 355. 186. Because the underlying claim that gives rise to the breach involves several tort actions per se, punitive damages, should be found reasonable by this court. 187. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 188. As a proximate result from republishing or recreating in whole the sexual content in the JERKINGMAN ACCOUNT referenced above, Mr. Caraccioli has suffered, and will continue to suffer, loss of reputation along with shame, morti?cation, and hurt feelings because of the quantity of people who saw the ERKINGMAN ACCOUNT and personally kept and/or copied the images or videos in the ACCOUNT. Therefore, Mr. Caraccioli suffered and will suffer in the future, general and special damages including but not limited to, damages for expenses, lost income and damage to her trade, profession, and occupation in a sum not yet capable of ascertainment other than the fact that the sum exceeds this Court's jurisdictional minimum, but in no event less than $100,000.00. 189. The aforementioned wrongful acts of Defendants were done intentionally or with a conscious disregard of Mr. Caraccioli?s rights, and with the intent to vex, injure or annoy Mr. Caraccioli such as to constitute oppression, fraud, or malice, thus entitling Mr. Caraccioli to exemplary and punitive damages in an amount appropriate to punish or to set an example of -32- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page33 of 38 Defendants and each of them, and to deter such conduct in the future, which amount will be proved at trial, but in no event should be less than $1,000,000.00. 190. The Communications Decency Act 47 U.S.C.A. 230 does not grant immunity for reckless conduct in disregard for the truth because the congressional objectives in passing 230 are not furthered by providing immunity in instances where posted reposted material is clearly not meant for publication. Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003). NINTH CAUSE OF ACTION (Negligent Hiring, Supervision, or Retention) (Against All Defendants) 191. Mr. Caraccioli re-alleges and incorporates herein by this reference the allegations in paragraphs 1 through 190 inclusive, as though set forth herein. 192. and based thereon alleges, that DEFENDANT FACEBOOK, Inc., negligently and carelessly trained At all times mentioned in this complaint, Mr. Caraccioli is informed and believes, and retained its employees including, but not limited to, Does 1 through 10. 193. Mr. Caraccioli is informed and believes, and based thereon alleges, that DEFENDANT ACEBOOK, Inc., breached their duty to exercise reasonable care and acted with reckless disregard in the training and retention by failing to give them adequate training to detect, but not limited to, unwanted sexual publications or otherwise unlawful content pursuant to The Communications Decency Act 47 U.S.C.A. 230. 1 94. DEFENDANT FACEBOOK employees including, but not limited to, Does 1 through 10 in order to prevent republication of sexual or otherwise unlawful content in the DEFENDANT DEFENDANT FACEBOOK negligently failed to investigate the background of Website. 195. The ACCOUNT was seen and read on or about September 14, 2014 by thousands of individuals worldwide, children, or anyone who received a friend request from the JERKINGMAN ACCOUNT. Speci?c names are ascertainable and can be given upon discovery. IN - 33 - FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4145-EJD Document8 FiledO9/21/15 Page34 of 38 196. The above-described republication was not privileged because it was published by Defendants with conscious or reckless disregard as to the falsity or obscene sexual content, establishing malice, hatred and ill will toward Mr. Caraccioli or the desire to injure Mr. Caraccioli. 197. Because of DEFENDANT malice in republishing or recreating in whole, Mr. Caraccioli seeks punitive damages in a total amount to be established by proof at trial. 198. Punitive Damages are awarded when there is a showing of malice or reckless disregard in cases involving the negligent hiring, supervision, and retention. Phi??er v. Proud Parrot Motor Hotel Inc., 648 F.2d 548, 553 (9th Cir. 1980). 199. Because the underlying claim giving rise to the negligent supervision issue, the court should reasonably award punitive damages to Mr. Caraccioli. 200. As a proximate result of the above-described republication, Mr. Caraccioli has suffered loss of his reputation, shame, morti?cation, and injury to his feelings, in a total amount to be established by proof at trial. 201 . As a proximate result from republishing or recreating in whole the sexual content in the ERKINGMAN ACCOUNT referenced above, Mr. Caraccioli has suffered, and will continue to suffer, loss of reputation along with shame, morti?cation, and hurt feelings because of the quantity of people who saw the JERKINGMAN ACCOUNT and personally kept and/or copied the images or videos in the ACCOUNT. Therefore, Mr. Caraccioli suffered and will suffer in the future, general and special damages including but not limited to, damages for expenses, lost income and damage to her trade, profession, and occupation in a sum not yet capable of ascertainment other than the fact that the sum exceeds this Court's jurisdictional minimum, but in no event less than $100,000.00. 202. The aforementioned wrongful acts of Defendants were done intentionally or with a conscious disregard of Mr. Caraccioli?s rights, and with the intent to vex, injure or annoy Mr. Caraccioli such as to constitute oppression, fraud, or malice, thus entitling Mr. Caraccioli to exemplary and punitive damages in an amount appropriate to punish or to set an example of Defendants and each of them, and to deter such conduct in the future, which amount will be proved at trial, but in no event should be less than $1,000,000.00. -34- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4l45-EJD Document8 FiledO9/21/15 Page35 of 38 203. The Communications Decency Act 47 U.S.C.A. 230 does not grant immunity for reckless conduct in disregard for the truth because the congressional objectives in passing 230 are not furthered by providing immunity in instances where posted reposted material is clearly not meant for publication. Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003). TENTH CAUSE OF ACTION Claim for Remedies for Violations of the California Unfair Business Practices Code 17001- 204. 17210, et seq. (Against all Defendants) Mr. Caraccioli re-alleges and incorporates by reference the foregoing allegations in paragraphs 1 through 203, inclusive, as though set forth herein. 205. Defendants, and each of them, are ?persons? as de?ned under the Business and Professions Code. 206. Mr. Caraccioli is informed and believes and based thereon alleges that Defendants committed the unfair business practices, as de?ned by Cal. Bus. Prof. Code 17001-17210, et seq., by engaging in deceptive conduct that violated Mr. Caraccioli?s privacy rights and the legislative intent with reckless or gross disregard towards the rights of others, allegations which are incorporated herein by reference and which allegations include, but are not limited toDefamation; Libel; Invasion of Privacy Upon the Solitude or Seclusion; Invasion of Privacy in False Light; Invasion of Privacy by Public Disclosure of Private Facts; Intentional In?iction of Emotional Distress; Negligent In?iction of Emotional Distress; Breach of Contract; AND Negligent Supervision and Retention. -35- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4145-EJD Document8 FiledO9/21/15 Page36 of 38 207. DEFENDANT conduct, as alleged above, constitutes unlaw?il, unfair, and Fraudulent, or deceptive activity prohibited by Business and Professions Code et seq. 208. Mr. Caraccioli relied on DEFENDANT ?Terms of Service? to his reputational detriment because Mr. Caraccioli relied on DEFENDANT ACEBOOK to block sexually obscene content and/or not recklessly disregard DEFENDANT own ?Terms of Service? which lead to DEFENDANT injury causing republication of the ERKINGMAN ACCOUNT. 209. DEFENDANT utility [advancing the ?'ee ?ow or marketplace of ideas] by masking? or hiding RECKLESS or MALICIOUS per se actionable conduct porn detection] is signi?cantly outweighed by the gravity of harm done to Mr. Caraccioli?s reputation and emotional well-being because there was no utility in RECKLESSLY or MALICIOUSLY disseminating what is pornography in a ?family friendly? Website at the cost someone?s privacy, honor, and peace. 210. As a proximate cause from such reckless conduct by DEFENDANT FACEBOOK, Mr. Caraccioli has suffered injury per se and therefore seeks punitive damages as afforded under, but not limited to, 17001-17210, et seq and other damages this court deems reasonable. Guglielmino v. McKee Foods Corn. 506 F.3d 696, 700 (9th Cir. 2007). 211. As a result of their improper deceptive acts, Mr. Caraccioli also seeks punitive damages because DEFENDANT FACEBOOK reaped unfair bene?ts or illegal pro?ts at the expense of Mr. Caraccioli in the form of advertising sales and the increase in traf?c ?ow from online users accessing the ERKINGMAN ACCOUNT in DEFENDANT Website. 212. As a proximate result from republishing or recreating in whole the sexual content in the JERKINGMAN ACCOUNT referenced above, Mr. Caraccioli has suffered, and will continue to suffer, loss of reputation along with shame, morti?cation, and hurt feelings because of the quantity of people who saw the JERKINGMAN ACCOUNT and personally kept and/or copied the images or videos in the ACCOUNT. Therefore, Mr. Caraccioli suffered and will suffer in the future, general and special damages including but not limited to, damages for expenses, lost income -36- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4145-EJD Document8 FiledO9/21/15 Page37 of 38 and damage to her trade, profession, and occupation in a sum not yet capable of ascertainment other than the fact that the sum exceeds this Court's jurisdictional minimum, but in no event less than $100,000.00. 213. The aforementioned wrongful acts of Defendants were done intentionally or with a conscious disregard of Mr. Caraccioli?s rights, and with the intent to vex, injure or annoy Mr. Caraccioli such as to constitute oppression, fraud, or malice, thus entitling Mr. Caraccioli to exemplary and punitive damages in an amount appropriate to punish or to set an example of Defendants and each of them, and to deter such conduct in the future, which amount will be proved at trial, but in no event should be less than $1,000,000.00. 214. The Communications Decency Act 47 U.S.C.A. 230 does not grant immunity for reckless conduct in disregard for the truth because the congressional objectives in passing 230 are not furthered by providing immunity in instances where posted reposted material is clearly not meant for publication. Batzel v. Smith, 333 F.3d 1018, 1034 (9th Cir. 2003). DEMAND FOR TRIAL BY JURY 215. Mr. Caraccioli hereby demands a trial by jury. PRAYER FOR RELIEF WHEREFORE, Mr. Caraccioli prays for judgment against defendants as follows: 1. For compensatory damages, including loss of wages, promotional opportunities, bene?ts and other opportunities of employment, according to proof; 2. For past, present, and ?iture mental and emotional distress damages, and damages for injury to reputation; 3. For an award of interest, including prejudgment interest, at the legal rate; 4. For an award of prevailing party attorneys? fees, if counsel is appointed by the court or obtained. 6. For punitive and exemplary damages in an amount suf?cient to punish and deter DEFENDANT outrageous conduct; 7. For costs of suit incurred herein; 8. For such other and further relief as the court deems just and proper. -37- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES Case5:15-cv-O4145-EJD Document8 FiledO9/21/15 Page38 of 38 Dated: -33- FIRST AMENDED COMPLAINT FOR PUNITIVE DAMAGES