U.S. Supreme Court

Supreme Court will consider social media liability for terrorist attacks

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The U.S. Supreme Court on Monday agreed to hear two cases that consider the liability of social media companies for content that relays terrorist propaganda and builds support for terrorist groups.

At issue in Gonzalez v. Google is whether Section 230 of the Communications Decency Act protects social media companies for third-party content recommended to users through automated algorithms, according to the cert petition.

Reuters, Law360, Bloomberg Law, CNN, the Washington Post and Politico have coverage; the SCOTUSblog case page is here.

Section 230 protects websites from liability for third-party content by providing that the websites shall not be treated as the publisher of information provided by other users. The law was enacted after a New York state court held an internet service provider was liable for defamatory comment posted on one of its message boards.

The case before the Supreme Court was filed by relatives of Nohemi Gonzalez, a 23-year-old student who was killed in 2015 by Islamic State group terrorists while at a Paris bistro. The suit alleges that YouTube owner Google recommended videos through its algorithms that provided material support to the Islamic State group in violation of the Anti-Terrorism Act, which authorizes damages in connection with acts of international terrorism.

Gonzalez’s family maintains that Section 230 protections should apply only to traditional editorial decisions made by publishers and not to recommendations made by algorithms that promote connections and interactions. The automated recommendations increase engagementand build ad revenue.

Eric Goldman, a professor at the Santa Clara University School of Law, told the Washington Post that the Supreme Court has not yet directly evaluated Section 230.

The second case, Twitter v. Taamneh, was filed by relatives of Nawras Alassaf, who died in a 2017 terrorist attack on a nightclub in Istanbul, Turkey, according to the cert petition. The SCOTUSblog case page is here.

The suit alleged that Twitter, Google and Facebook were liable under the Anti-Terrorism Act for aiding and abetting terrorist acts by failing to remove content that helped spur the rise of the Islamic State group. Twitter sought Supreme Court review after a federal appeals court ruled for the plaintiff—without reaching the Section 230 issue.

The Twitter cert petition raises two issues. The first is whether a failure to act satisfies the law’s liability requirement that the defendant “knowingly” provided substantial assistance to the terrorist groups. The second is whether a defendant can be liable for content that didn’t spur the specific act of terrorism that killed the plaintiff’s family member.

The 9th U.S. Circuit Court of Appeals at San Francisco decided both cases in a single opinion, according to the Taamneh cert petition. In Gonzalez, the 9th Circuit held that the plaintiffs’ claims were generally barred under Section 230. In Taamneh, the appeals court held that the social media companies could be liable for aiding and abetting an act of international terrorism.

“This case is the sole outlier among more than a dozen lawsuits seeking to hold social media companies liable under the ATA for the consequences of terrorist attacks committed around the world,” the Taamneh cert petition says. “The remaining cases all were dismissed, including in cases affirmed by the 2nd, 5th, 6th, and 11th Circuits.”

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