But it’s likely based on the court’s rulings on Section 230 of the Communications Decency Act in a related appeal over terrorist attacks in Paris that the plaintiffs will face long odds on remand.
The issue of immunity wasn’t reached in the Reina nightclub case, because the lower court dismissed the lawsuit under the Anti-Terrorism Act.
The U.S. Court of Appeals for the Ninth Circuit affirmed lower court rulings that most of the plaintiffs’ claims were barred by Section 230 immunity for claims based on publisher status, but it suggested Congress ought to revisit the provision.
The law, according to the court, “is likely premised on an antiquated understanding of the extent to which it is possible to screen content posted by third parties.”
“Whether social media companies should continue to enjoy broad immunity for the third-party content they publish, and whether their use of algorithms ought to be regulated, are pressing questions that Congress should address,” the court said.
The appeals court declined to revive a third lawsuit brought by family members of individuals killed in terrorist attacks in San Bernardino for failure to state a claim under the ATA after concluding the prepertrators weren’t sufficiently tied to ISIS.
The court agreed that Section 230 Act barred most of the claims against Google, brought by family members of Nohemi Gonzalez, a U.S. citizen killed in the terrorist attacks in Paris in fall 2015, because most of the relevant conduct took place in the United States.
Although the Ninth Circuit panel held that the family’s claims for liability under the Anti-Terrorism Act premised on a revenue-sharing theory, as opposed to publisher status or conduct, weren’t barred by Section 230, the court said the factual allegations were insufficient.
Specifically, the allegations didn’t support a claim for direct liability because they didn’t allege that Google was motivated by anything other than profiting from shared advertising revenue.
To violate the ATA, the conduct must be intended to intimidate or coerce a civilian population or to influence a government, and"nothing in the statutory scheme suggests that material support always qualifies as international terrorism,” Judge Morgan Christen wrote for the majority.
As to secondary liability, although the plaintiffs adequately alleged that Google was aware of the role it played in ISIS’s terrorists activities, they failed to allege that its assistance “was sufficiently ‘substantial’” to amount to aiding and abetting under the law, the court said.
“Although monetary support is undoubtedly important to ISIS’s terrorist campaign,” the complaint “is devoid of any allegations about how much assistance Google provided,” Christen said. The plaintiffs also failed to allege that Google conspired with ISIS to carry out the attacks.
The Gonzalez complaint is similar to the one brought by family members of Nawras Alassaf, a Jordanian citizen who was killed at the Reina nightclub while visiting Istanbul.
The appeals court reversed and remanded the lower court’s dismissal, concluding the allegations, if true, adequately alleged a claim that the social media platforms aided and abetted the attack.
Section 230 wasn’t at issue in the Reina appeal because the lower court hadn’t reached it, and the claims weren’t limited to a revenue-sharing theory.
The complaint alleges the social media companies “provided services that were central to ISIS’s growth and expansion, and that the assistance was provided over many years.”
After years of extensive media coverage and government pressure concerning use of the platforms by ISIS, the social media platforms were “generally aware they were playing an important role in ISIS’s terrorist enterprise by providing access,” the plaintiffs claim, but failed to take meaningful steps to prevent ISIS from using them to promote its terrorist agenda.
San Bernardino Attack
The court affirmed dismissal of a lawsuit by family members of Sierra Clayborn, Tin Nguyen, and Nicholas Thalasinos, who were killed in San Bernardino by two individuals claiming allegiance to ISIS during an office holiday party.
The plaintiffs failed to “plausibly allege that ISIS ‘committed, planned, or authorized’” the attacks, the court said, because they alleged only that ISIS approved of the shooting after the fact, “not that it authorized the attack beforehand.” They needed to allege more “to plausibly allege a cognizable claim for aiding-and-abetting liability,” the court said.
Judge Marsha S. Berzon wrote separately that her concurrence was reluctant, and she urged the Ninth Circuit to rehear the case en banc and to reconsider its case law in order to narrow its reading of Section 230 immunity.
Judge Ronald M. Gould concurred in part and dissented in part, writing that, among other things, he wouldn’t have affirmed dismissal of the Gonzalez claims on Section 230 immunity.
Excolo Law and Berkman Law Office represent the plaintiffs in the appeal. Google is represented by Wilson Sonsini Goodrich & Rosati PC. Twitter is represented by Wilmer Cutler Pickering Hale & Dorr LLP. Facebook is represented by Gibson, Dunn & Crutcher LLP.
The case is Gonzalez v. Google LLC, 9th Cir., No. 18-16700, 6/22/21.