It’s well-known that Facebook, Twitter, YouTube, and other social media platforms are used for propaganda and recruiting purposes by terrorist groups such as ISIL. A number of Jewish groups filed lawsuits alleging that Facebook should be held civilly liable for facilitating terrorist attacks against Jews. Two of these cases recently were dismissed by Judge Nicholas Garaufis in the U.S. District Court for the Eastern District of New York. A copy of Judge Garaufis’ Memorandum and Order is available below.
In Cohen v. Facebook, the plaintiffs asserted negligence and civil conspiracy theories under Israeli and U.S. law. That case was removed to federal court by Facebook. In Force v. Facebook, the plaintiffs asserted claims under the federal “Providing Material Support to Terrorists” statute, 18 U.S.C. § 2339A and the civil remedies provision for terrorist acts, 18 U.S.C. § 2333A, as well as for negligence and other breaches of duty under Israeli law. Copies of the Cohen and Force Complaints are available below.
Judge Garaufis dismissed the Cohen case for lack of standing because the individual plaintiffs asserted only a threat or fear of possible future harm. He also dismissed the Force case under the immunity provision of section 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1). This provision states that “[n]o 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.” Id.
The Second Circuit has established a three-part test for determining whether section 230 immunity applies: the law “shields conduct if the defendant (1) is a provider or user of an interactive computer service, (2) the claim is based on information provided by another information content provider and (3) the claim would treat [the defendant] as the publisher or speaker of that information.” FTC v. LeadClick Media, LLC, 838 F.3d 158, 173 (2nd Cir. 2016).
The primary issue in these cases was whether the third element would be satisfied. Here, the focus is on whether the provider exercises “a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone, or alter content.” Id. at 174. The plaintiffs in the Force case argued that Facebook was not acting as a publisher but rather was providing content-neutral services in support of terrorist activities by Hamas. The court rejected this argument and found the section 230 immunity applies to Facebook. Memorandum and Order, at 17-23.
The plaintiffs in the Force case also raised a creative argument: section 230 should not apply because the terrorist acts occurred in Israel and there is a presumption against extraterritoriality. Judge Garaufis also rejected this argument and held that the focus of section 230 is to limit civil liability of internet service providers and that the relevant events relating to such liability involve the location of the speaker. Since Facebook is a U.S. corporation, Judge Garaufis held that section 230 did not require extraterritorial application in this case even though the terrorist acts happened in Israel. Memorandum and Order, at 23-27.
Judge Garaufis’ interpretation of section 230, including the question of extraterritoriality raised by this case, seems correct. Section 230, however, was a legislative solution to Internet publisher liability in a simpler age, before the explosion of social media platforms and their cooptation by terrorists. There may be good policy arguments today for imposing some legal duties on social media sites to screen for materials that incite violence and terrorism.
Cohen and Force Opinion