Facebook defeats appeal claiming it aided Hamas attacks
NEW YORK (Reuters) – Facebook Inc. defeated an appeal on Wednesday by American victims of Hamas attacks in Israel who sought to hold the company liable for permitting the group to further its terrorist goals on their platform.
The 2nd US Circuit Court of Appeals in Manhattan ruled that the Communications Decency Act (“CDA”) – a 1996 law regulating Internet content – shielded Facebook from civil liability.
The court also declined to consider the plaintiffs’ foreign law claims, noting that most plaintiffs, including relatives and estates of victims, said they were Americans living in Israel.
The plaintiffs originally sought $3 billion in damages from Facebook for allowing Hamas to use its platform to encourage terrorist attacks in Israel, celebrate successful attacks, and generally support violence in and toward the country.
Their complaint described Hamas attacks in Israel against five Americans, four of whom died, from 2014 to 2016.
Lawyers for the plaintiffs did not immediately respond to requests for comment. Facebook did not immediately respond to similar requests.
Wednesday’s decision is a setback for efforts to hold companies such as Facebook and Twitter liable for failing to better police users’ speech.
It upheld a May 2017 dismissal by US District Judge Nicholas Garaufis in Brooklyn.
In seeking to overturn that dismissal, the plaintiffs said Facebook functioned as a matchmaker between Hamas and people receptive to its messages, and should not be immune from liability as a mere “publisher” of Hamas’ content.
Circuit Judge Christopher Droney, however, said it would turn the CDA “upside down” to suggest that Facebook’s having become an “especially adept” publisher exposed it to liability.
Additionally, he refused to hold Facebook liable because its “friend” and content-based algorithms might have helped to direct interested users toward Hamas.
“Merely arranging and displaying others’ content to users of Facebook through such algorithms – even if the content is not actively sought by those users – is not enough to hold Facebook responsible as the ‘developer’ or ‘creator’ of that content,” Droney wrote.
Chief Judge Robert Katzmann, one of the three judges on the appeals court panel, dissented from the algorithms discussion.
He said that Congress did not consider how broadly to immunize social media companies when it passed the CDA in 1996 to regulate online pornography, and might need to rethink how to treat those accused of encouraging terrorism, propaganda and extremism.
“Over the past two decades the Internet has outgrown its swaddling clothes,” Katzmann wrote. “It is fair to ask whether the rules that governed its infancy should still oversee its adulthood.”
The US Department of State has designated Hamas a foreign terrorist organization since 1997.