United States: Pulse Nightclub Shooting Lawsuit May Show Path Around The Communications Decency Act

Last Updated: February 3 2017
Article by Jason W. Callen

I previously posted Facebook Fake News Problem May Impact Businesses Operating Open Web Sites on why the controversy over fake news stories on Facebook may cause concern for businesses operating open websites, although such companies generally remain shielded from liability by the Communications Decency Act for content posted on their sites by third parties.  A recent lawsuit filed against Twitter, Facebook, and Google (YouTube) by the families of three individuals killed in the Pulse Nightclub shooting in Orlando last June is testing the limits of the Act's protections by pointing to the advertisements posted on their sites.  If accepted, the plaintiffs' theories of liability could have far-reaching application.

The plaintiffs allege that the Orlando shooter was radicalized through social media and that ISIS's use of the defendants' websites influenced his actions in the shooting.  This is not the first time social media sites have been sued over a terrorist attack.  Last November, in Fields v. Twitter, Inc., a federal district court in San Francisco dismissed a lawsuit brought against Twitter by the families of two government contractors in an attack in Jordan for which ISIS claimed responsibility.  2016 WL 6822065 (N.D. Calif. Nov. 18, 2016).  The plaintiffs alleged that Twitter was responsible for the Jordanian shooting for (among other reasons) providing accounts on its site to ISIS.  The district court, however, held that such claims were barred by the CDA, which states that businesses operating open websites cannot be held liable as publishers for content posted by third parties.  The court found that "providing accounts to ISIS is a publishing activity, just like monitoring, reviewing, and editing content."  Because the plaintiffs were trying to hold Twitter liable for a "publishing activity," their claims ran headlong into the CDA's prohibition on treating online intermediaries as publishers.

The plaintiffs in the Pulse Nightclub case have taken a different tack.  They argue that the defendant social media companies have acted as "information content providers" beyond the protections of the CDA.  In contending that the Twitter, Facebook, and YouTube are not mere pass throughs for third-party content, the plaintiffs focus on the websites' advertisements.  They allege that these companies use algorithms to select advertisements for each third-party posting based on information about the viewer and the content of the posting.  Thus, plaintiffs allege that these companies "created new unique content by choosing which advertisement to combine with the posting with knowledge about the viewer."

The defendants have yet to file a response.  Presumably, it is safe to assume that they will argue that their advertisements do not make them content providers responsible for terrorists' posting.  Regardless, this suit bears watching.  If the court finds that the plaintiffs have successfully plead around the CDA's protections, business operating open websites must re-examine their own advertisement policies to ensure that they are not unnecessarily exposing themselves to liability.

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