Decision to Dismiss Suit Seeking to Hold Facebook Liable for Hamas Attacks Affirmed by the Second Circuit

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The United States Court of Appeals for the Second Circuit affirmed the dismissal of a lawsuit seeking to hold Facebook, Inc. liable for providing Hamas, a Palestinian Islamist organization who is a U.S. designated foreign terrorist organization, a communication platform to encourage and enable acts of violence in Israel.

Over three years ago, victims, estates, and family members of victims of terrorist attacks in Israel brought suit against Facebook alleging that Facebook provided material support to the terrorist organization by failing to remove content posted by members of the organization which was intended to both encourage and celebrate acts of terrorism in Israel. The plaintiffs alleged that, although Facebook’s terms and policies prohibited the proliferation of this information, Facebook failed to remove the “openly maintained” pages associated with certain Hamas leaders, and that Facebook’s algorithms directed the offending content to the personalized newsfeeds of the individuals who perpetrated the attacks. The plaintiffs therefore sought to hold Facebook liable for “giving Hamas a forum with which to communicate and for actively bringing Hamas’ message to interested parties.”

Facebook moved to dismiss the plaintiffs’ complaint based on, among other things, failure to state a claim since federal law made the company immune to the plaintiffs’ claims. In making this argument, Facebook relied on 42 U.S.C. Section 230(c)(1), which provides 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.” Specifically, Facebook argued that the plaintiffs impermissibly sought to hold Facebook liable as the publisher or speaker of the information provided by Hamas, in contradiction to the statute. The plaintiffs countered by asserting that they were not seeking to hold Facebook liable as the “publisher” or “speaker” of the content, but that it contributed to the content through its algorithms, which allegedly placed the content in front of the would-be attackers.

The Second Circuit, like the district court, was not convinced by the plaintiffs’ arguments. The court held that the plaintiffs’ allegations about Facebook’s conduct do not render it responsible for the Hamas-related content. It found that, though the statute does not define the term “publisher,” the plaintiffs’ claims relating to Facebook’s conduct implicate it as a “publisher” of information which place it squarely within the protections of the statute. This included Facebook’s use of an algorithm for what the plaintiffs’ termed “matchmaking” since “[a]rranging and distributing third‐party information inherently forms ‘connections’ and ‘matches’ among speakers, content, and viewers of content, whether in interactive internet forums or in more traditional media,” which the court found was “an essential result of publishing.”

In rendering its decision, the Second Circuit relied heavily on the purpose and policy behind the enactment of 42 U.S.C. Section 230(c)(1), which is “to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” The Second Circuit therefore acknowledged that the statute itself should be construed broadly in the favor of immunity for the service provider.

The case is Force v. Facebook, Inc., No. 18-397, 2019 WL 3432818 (2d Cir. 2019).