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 Facebook, Defamation, and Terrorism:
Who Is Responsible for Dangerous Posts on
Social Media?
Caitlin McKeown*

I. INTRODUCTION ........................................ 163

II. BACKGROUND ......................................... 165
A. The CommunicationsDecency Act-Ongins and
History ....................................... 165
B. The Modern CDA-f 230 andPublisherImrunity........ 167
C The MaterialSupport Statute andIts Connection to
Terroism Online. ............................ 173
III. TERRORISM AND SOCIAL MEDIA-A NEW FRONTIER UNDER
THE CDA AND § 2339B . ............................ 176
IV. THE RISE OF ONLINE ANTITERRORISM LITIGATION IN EUROPE...... 184

I. INTRODUCTION

Technology and the Internet have created a whole new virtual world
for the average person to explore. With the click of a button, people can
share their thoughts, photos, and opinions, all while quickly analyzing
information posted by other persons, news sites, companies, and
politicians. While the Internet and social media have facilitated
communication and opened the door to virtual exploration, there is an
ever-growing trend towards threatened privacy and, even more serious,
breaches in national security. Companies, like Facebook, have expanded
beyond comprehension, with an average of 1.37 billion users active daily
throughout the globe in June 2017 alone.' It is nearly impossible for
Facebook and similar sites, such as Twitter, Google, and Myspace, to
micromanage individual posts on such a massive, global scale. As a
result, posts promulgating political insurgence, terrorism, and false,

* C 2017 Caitlin McKeown. J.D. candidate 2018, Tulane University Law School; B.A.
2013, The University of Chicago. I would like to thank my fellow members of the Tulane Journal
ofInternationalandComparativeLaw for all of their hard work and encouragement. In addition,
I would like to dedicate my Comment to my parents, who have continuously shown their love and
support throughout law school.
1. Company Info, FACEBOOK NEwSROOM, http://newsroom.fb.com/company-info/ (last
visited Nov. 22, 2017).
163
164 TULANE I OFINT'L & COMP. LAW [Vol. 26

incendiary data have plagued the Internet in recent years, bringing up the
important question of who is responsible for this information and what
avenues are available to stop it? Unfortunately, the answer still remains
unclear in both the United States and abroad.
In the United States, this question is coupled with an analysis of
Free Speech under the Constitution, as well as a federal immunity statute
known as the Communications Decency Act (CDA), which removes
liability from online publishers for defamatory or incendiary posts made
by third party users.2 In the past year, a variety of lawsuits have been
filed against tech giants, like Facebook and Twitter, under §§ 2339A and
2339B of the Patriot Act, better known as the Material Support Statute.'
This statute has been clashing with the CDA, when families of terrorist
victims sue these corporate giants in the hopes of placing liability on
websites for disseminating terrorist propaganda, albeit unknowingly,
through their websites.' However, courts have been wary to accept these
material support arguments, continuing to favor immunity for
corporations as mere publishers of the content.!
This Comment will examine the origins of CDA in the United
States alongside developments in antiterrorism legislation, including the
Material Support Statute of the U.S. Patriot Act, and its application to
social media. Specifically, it will analyze the two statutes in detail and
delve into a discussion of how plaintiffs in antiterrorism legislation are
finding new ways to sue Internet sites under the Material Support
Statute, as well as how these websites are rebutting such claims by
invoking the long-standing immunity of the CDA. Furthermore, this
Comment will examine potential loopholes around the CDA via
suggested changes to both the statute and case law, including the idea of
making websites liable for dangerous content via site-wide report and
remove systems, potential amendments to the CDA, and by applying
more plaintiff friendly case precedent as seen in the Ninth Circuit.'
Finally, this Comment will examine similar types of litigation abroad,
specifically a German case filed by a Syrian refugee whose "selfie" with
Chancellor Angela Merkel led to an onslaught of false posts and

2. 47 U.S.C. § 230 (1998).

3. See 18 U.S.C. § 2339A (2009); see also 18 U.S.C. § 2339B (2015).
4. See47 U.S.C. § 230 (1998).
5. See generallyBlumenthalv. Drudge, 992 F. Supp. 44, 52 (D.C. Cir. 1998).
6. See Michael Burke, Cracks in the Armor? The Future of the Communications
Decency Act and PotentialChallenges to the Protectionsof Section 230 to Gossip Web Sites, 17
B.U. J. Sci. & TECH. L. 232, 257-58 (2011); see alsoPatricia Spiccia, The Best Things in Life Are
Not Free: Why Immunity Under Section 230 of the Communications Decency Act Should Be
Earnedand Not Freely Given, 48 VAL. U. L. REv. 369,408-16 (2013).
2017] FACEBOOK, DEFAM4TION AND TERRORISM 165

photoshopped images of the refugee on Facebook terrorist propaganda

pages. The importance of this decision abroad is that it showcases that
these types of issues are not localized to one country or continent but are
concerns that need to be addressed and resolved on a global scale with
the assistance of worldwide corporate tech giants, like Facebook, Google,
and Twitter. Companies, like Facebook, by enacting uniform corporate
policy to combat online terrorism and defamation, might be the first step
in encouraging countries to amend their laws and promote more
consumer-oriented judicial recourse when it comes to the Internet.

II. BACKGROUND

A. The CommunicationsDecencyAct-Oighns andHistory

Before delving into recent antiterrorist and antidefamation case law
under the Material Support Statute and online publisher immunity, it is
important to understand the background and fundamental underpinnings
of the CDA. In 1996, the U.S. Congress created the CDA to combat
quickly amassing concerns regarding the ability of young children to
view pornography and other offensive material on the Internet.' The
CDA stated that it was punishable under criminal law to "knowingly
transmit 'obscene' or 'indecent' messages, as determined by local
community standards" to a minor and "prohibited knowingly sending or
displaying a 'patently offensive' message containing sexual or excretory
activities ... to a minor."' While the general language of the CDA
imposed a broad ban on certain materials, it did provide an effective
loophole with what is known as the good faith clause."o Essentially, the
good faith clause stated that if an individual or website took obvious

7. See Melissa Eddy, How a Refugee's Selfie with Merkel Led to a FacebookLawsuit,
N.Y. TIMES (Feb. 6, 2017), https://www.nytimes.com/2017/02/06/business/syria-refugee-anas-
modamani-germany-facebook.html?_r-0.
8. See Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, Title V, § 502
(1996).
9. William A. Sodeman, CommunicatonsDecency Act (CDA) United States [1996]
ENCYCLOPEDIA BRITANNICA (Nov. 24, 2016), https://www.britannica.com/topic/Communications-
Decency-Act.
10. Id; see alsoTelecommunications Act of 1996 § 502(d)(5)(A)-(B), which specifically
states:
[Iit is a defense to a prosecution under [the Act] ... [if] a person (A) has taken, in
good faith, reasonable, effective, and appropriate actions under the circumstances to
restrict or prevent access by minors to a communication specified in such subsections,
which may involve any appropriate measures to restrict minors from such
communications, including any method which is feasible under available technology;
or (B) has restricted access to such communication by requiring use of a verified credit
card, debit account, adult access code, or adult personal identification number.
166 TULANE I OFINT'L & COMP LAW [Vol. 26

efforts to prevent children from accessing inappropriate materials on

their site, they may have an adequate defense in court."
While the CDA's purpose may have been noble, courts were greeted
by a plethora of lawsuits challenging the statute's abstruse language.
Obscurity regarding the good faith exception was a major point of
contention, with Internet service providers (ISPs) unsure of how to
effectively weed out minor users from their websites without alienating
older, consenting users." Secondly, the language of the CDA was
extremely broad, making it nearly impossible to define what material fell
within the definition of "indecent" or "patently offensive" under the
statute's own language. 3 ISPs argued that these blanket statements
violated the First Amendment by placing an enormously difficult task on
Internet providers to censor content with no rational definitions or
guidelines. 4 Finally, issues arose concerning the statute's phrase
"contemporary community standards," which ISPs were expected to use
as a pathway for determining those materials that were offensive from
those that were not." This was an obvious issue as different states have
varying local standards that are used, making the statute lack any sort of
uniformity or general guidance.
A landmark case, Reno v ACLU, changed the scope of the CDA
and helped formulate the standards for § 230 that are currently in use
today." In Reno v ACLU, a variety of ISPs filed a lawsuit against the
Attorney General and the Department of Justice challenging the statute's
constitutionality under the First Amendment, particularly due to the
statute's confusing use of the language "indecent" and "patently
offensive."" The Supreme Court found the CDA to be unconstitutional
because it was far-reaching and too limiting, resulting in a violation of
free speech." The Court examined the statute's language, including the
provisions regarding "indecent" and "patently offensive" materials, and
found that:

11. Sodeman, supra note 9.

12. Id As stated within the CDA Bitannicaarticle, some ISPs used the suggested credit
card and age verifications as a method of removing minors from their sites to invoke the good
faith exception. Id. However, ISPs were wary of this as it had the potential to harm their
business with adults. Id.
13. Id.; see also Telecommunications Act of 1996 § 502(a).
14. Sodeman, supra note 9.
15. Id; Telecommunications Act of 1996 § 502(d)(1)(B).
16. Sodeman, supra note 9.
17. SeeReno v. Am. Civil Liberties Union, 521 U.S. 844, 849 (1997).
18. Id.
19. Id. at 874-75.
2017] FACEBOOK, DEFAMATION AND TERRORISM 167

[T]he CDA lacks the precision that the First Amendment requires when a
statute regulates the content of a speech. In order to deny minors access to
potentially harmful speech, the CDA effectively suppresses a large amount
of speech that adults have a constitutional right to receive and to address to
one another. That burden on adult speech is unacceptable if less restrictive
alternatives would be at least as effective in achieving the legitimate
purpose that the statute was enacted to serve.20
In conclusion, the Court found that the CDA did more to hinder free
speech on the Internet rather than to encourage it.2 1 This prompted the
statute to be revised, and for the term "indecent" to be officially removed
from the language of the CDA.22
It is important to note that while the Supreme Court found the CDA
to be unconstitutional for its broad prohibition on obscene materials in
light of free speech, the CDA does still uphold the idea that online
defamation is illegal and punishable by law.23 This portion of the CDA
survived the Supreme Court's gutting of the statute, and most online
defamation claims are governed under its scope. However, the modern
§ 230 makes a clear distinction for third party ISPs in defamation claims,
a source of major contention in recent lawsuits addressing issues of
individual privacy and national security online.

B. The Modern CDA--f 230 and PubhsherImmuity

The most important section of the modern CDA is § 230(c)(1),
otherwise known as the publisher immunity clause.24 Section 230(c)(1)
states that "no provider or user of interactive computer service shall be
treated as the publisher or speaker of information provided by another
information content provider."25 This statement removes liability from
publishers of false, dangerous, or misleading content online.26
Furthermore, the immunity granted under § 230(c)(1) is subject to the
Supremacy Clause, meaning that it trumps all state and local legislation
that might oppose it.27 It is also important to note that an ISP is not
required to remove any false information posted throughout its website,

20. Id
2 1. Id
2 2. Id
23. The Communications Decency Act and Its Effect on Onkne Libel, REPUTATION
HAwK, https://www.reputationhawk.com/communicationsdecencyact.html (last visited Mar. 21,
2016).
24. See47 U.S.C. § 230(c)(1) (1998).
25. Id
26. Timothy L. Alger, The CommunicationsDecency Act: Making Sense of the Federal
Immunity for Online Services 59 ORANGE COUNTY L. 30, 31 (2017).
27. Id
168 TULANE OFINT'L & COMP LAW [Vol. 26

even when the provider is put on notice that the content exists.2 8 While
the CDA does not prohibit all types of civil and criminal claims, it has
opened the door for ISPs, allowing for the unprecedented growth of
social media sites and search engines largely unhindered by any sort of
regulation or responsibility for the content posted throughout their
websites.29
When discussing the CDA, it is important to learn the distinction
between interactive computer services (ICS) and information content
providers (ICP) as these have very different implications under the CDA's
scheme.30 While both fall under the general definition of an ISP, they do
have distinct differences. An ICS is "any information service, system, or
access software provider that provides or enables computer access by
multiple users to a computer server."" It is widely accepted that search
engines, like Google, and social media sites, like Facebook and Twitter,
fall under the statute's definition of an ICS.32 In contrast, an ICP is "any
person or entity that is responsible, in whole or in part, for the creation or
development of information provided through the Internet or any other
interactive computer service."" Essentially, the difference is that the
former is the site allowing access to the data by providing the Internet
platform only, while the latter is responsible for the actual information
being created anddistributed. This would mean that ICPs are not granted
federal immunity under the CDA like ICSs.'
The first major case to address publisher immunity under the CDA,
and the case that set the precedent for CDA litigation for many years,
was Zeran v Ameica Online, Inc. in the U.S. Fourth Circuit Court of
Appeals.3 5 In Zeran, a man sued AOL for negligence when he received
an array of death threats after an unidentified user falsely linked his
phone number to the sale of offensive apparel relating to the Oklahoma
City bombing." The t-shirts and accessories in question were posted for
sale via an AOL bulletin board, where Zeran's phone number was linked
as the contact for sales." The post resulted in the local newspaper and
local radio shows condemning the apparel and encouraging readers and

28. Id.
29. Id. at 31-32.
30. Id. at 31; see also Spiccia, supm note 6, at 385-86.
31. 47 U.S.C. § 230(f)(2) (1998).
32. Alger, supm note 26, at 31.
33. 47 U.S.C. § 230 (f)(3).
34. Alger, supra note 26, at 33.
35. See Zeran v. Am. Online, Inc., 129 F.3d 328, 329 (4th. Cir. 1997).
36. Id.
37. Id
2017] FACEBOOK, DEFAM4TION AND TERRORISM 169

listeners to bombard the listed phone number to voice their complaints."

After receiving hundreds of threatening phone calls, Zeran repeatedly
contacted AOL to insist that the post be removed, but to no avail." Zeran
then sued, stating that AOL was negligent in failing to promptly remove
the content, for failing to post any sort of response to the posts, and for
declining to implement any sort of screening process.40 The court held
that the purpose of § 230 was to prevent government regulation and
intrusion into the realm of online free speech.4' The court further held
that while "the original culpable party who posts defamatory messages
would [not] escape accountability ... Congress made a policy choice ...
not to deter harmful online speech through the separate route of
imposing tort liability on companies that serve as intermediaries for other
parties' potentially injurious messages."42 Furthermore, the court found
that AOI's "[decision] whether to publish, edit, or withdraw user content"
was specifically the duty of a publisher under the CDA.4 3 The court also
acknowledged the sheer impracticability, nay impossibility, that Internet
providers can monitor millions of posts for potential defamation.' The
court found that implementing such restrictive policies and regulations
was counterintuitive to the CDA's purpose and would merely result in a
restriction of free speech.45 Therefore, the Fourth Circuit laid out the
precedent that the CDA immunized a large array of websites that display
defamatory content, all while eliminating responsibility for removing,
editing, or combating such material by labeling them as publishers for
purposes of the statute.46
The Zeran decision has dictated CDA case law for decades, with
courts broadening the scope of publisher immunity even further.4 7 For
example, in a major Fifth Circuit case, Doe v MySpace, the court
rejected the plaintiff's argument that her thirteen-year-old daughter
would not have been assaulted due to an online post asking to contact her
and meet her in person, if MySpace had taken preventative measures to
ensure that the users posting on the site were adults.48 The court, once
again, held MySpace as immune under the CDA for the publication of

38. Id.
39. Id.
40. Id. at 328.
41. Id
42. Id at 330-31.
43. Id at 332-33.
44. Id at 330-31.
45. Id at 331.
46. Id
47. Id.
48. Doe v. MySpace, Inc., 528 F.3d 415, 416 (5th Cir. 2008).
170 TULANE J OFINT'L & COMP. LA W [ Vol. 26

third party content, with the plaintiff's recourse being to sue the third
party posters themselves.49 The court in another famous case,
Blumenthal v Drudge, found that even though the ISP in question
maintained minor editorial control over the published content, the
defendant ISP was still immune under § 230."o In Blumenthal, the
plaintiffs sued Drudge and AOL for a gossip column Drudge wrote and
dispensed through AOL's services." The court found that while Drudge
was responsible for writing the content, AOL remained immune from the
suit as the publisher of the information, even when it held certain
"editorial rights with respect to the content provided by Drudge and
disseminated by AOL, including the right to require changes in content
and to remove it."5 2 As such, the court upheld the idea that an ISP can
hold some editorial qualities while still maintaining its immune status
under the CDA." In summation, CDA immunity has been condensed
through years of litigation into specific categories that create a high bar
for any plaintiff to reach to prove liability against ISPs in civil suits.54
While efforts to combat the CDA's publisher immunity clause
seemed futile throughout the 1990s and early 2000s, recent developments
in the Ninth Circuit have provided hope for plaintiffs in cases involving
online defamation and predation." In 2008, the Ninth Circuit created a
loophole around CDA immunity for ISPs by supporting a claim of
promissory estoppel in Barnes v Yahoo!, Inc." Barnes filed suit against
Yahoo when she repeatedly requested that Yahoo remove pornographic
photos of herself posted by her ex-boyfriend in Yahoo chatrooms." After
many attempts to get the photos removed, Yahoo responded that it was in

49. Id. at 420-22.

50. See Blumenthal v. Drudge, 992 F. Supp. 44, 52 (D.C. Cir. 1998).
51. Id. at 46-48.
52. Id. at 51.
53. Id
54. See KATHLEEN ANN RUANE, CONG. RESEARCH SERv., R44626, THE ADVOCACY OF
TERRORISM ON THE INTERNET: FREEDOM OF SPEECH ISSUES AND THE MATERIAL SUPPORT
STATUTES 21-22 (2016). Ruane nicely sums up the major subcategories of CDA litigation into a
three-part test. Id She states:
[A] three-part test has been developed to determine whether a defendant is eligible for
Section 230's protection. If the lawsuit is: 1. Brought against [an] interactive computer
service provider or user (e.g., a website like NYTimes.com, or a social media service
like Twitter or Facebook), 2. Based upon information provided by another content
provider, and 3. Seeks to hold the defendant liable as a publisher or speaker of that
content, then Section 230's liability shield applies.
Id.
55. See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d 1098, 1109 (9th Cir. 2009).
56. See id at 1109.
57. Id at 1098-99.
2017] FACEBOOK, DEFAMATION AND TERRORISM 171

the process of stopping the unauthorized posts." The posts continued

until Barnes filed suit, at which point the profiles disappeared." While
the court reasoned that Yahoo escaped liability on the basis of the content
as a publisher under the CDA, the court did uphold the plaintiff's claim
of promissory estoppel in that she relied on Yahoo's promise to remove
the inappropriate content.' The court found that "the promise created a
duty independent of the tort rules controlling publishers, as well as
Section 230(c)(1) immunity." 6
In a recent decision from 2016, Jane Doe v Internet Brands, Inc.,
the Ninth Circuit reversed the district court's dismissal of an aspiring
model's claim against the site, Model Mayhem, for negligent failure to
warn after she was lured to a fake audition posted on the website and
assaulted.6 2 While the court upheld that Internet Brands was an ICS that
is technically immune under § 230, the suit, here, was about the site's
failure to warn models about the information it retrieved from unknown
sources.6 1 Specifically, the court found that "the duty to warn allegedly
imposed by California law would not require Internet Brands to remove
any user content or otherwise affect how it publishes or monitors such
content."" Because this claim was removed from the defendant's identity
as an online publisher, it was not barred under the CDA."
Finally, an important decision in the Ninth Circuit from 2008
deviates from the idea of providing absolute immunity to ISPs when they
"materially contribute" to the unlawful content posted on their website.'
In Fair Housing Council of San Fernando Valley v Roommates. com,
LLC, the Ninth Circuit found that the defendant could not escape
liability under the CDA when it "contributes materially to the alleged
illegality of the conduct."" The Fair Housing Council brought suit
against Roommates.com, a website that matched available apartments to
renters, alleging that the website violated the Fair Housing Act and
housing discrimination laws via a requirement that renters fill out a
profile describing their sexual orientation, gender, and other personal

58. Id
59. Id
60. Id at 1108-09.
61. Alger, supranote 26, at 32-33.
62. SeeJane Doe No. 14 v. Internet Brands, Inc., 824 F.3d 848, 848 (9th Cir. 2016).
63. Id at 851.
64. Id
65. Id
66. Alger, supra note 26, at 34; see Fair Hous. Council of San Fernando Valley v.
Roommates.com, LLC, 521 F.3d 1161, 1175 (9th Cir. 2008).
67. FairHous., 521 F.3d at 1168.
172 TULANE J OFINT'L & COMP. LAW [Vol. 26

information.6 ' This created de facto discrimination by filtering and

limiting the number of listings that users saw based on the personal
information provided. 69 The court found that while federal immunity
under the CDA does remain in place for ISPs and similar websites, this
immunity should be foregone when the website encourages the illicit
content through its own actions."o Here, Roommates.com actively
encouraged discrimination in direct contravention to state and local fair
housing laws and, in essence, was directly associated with the illegality of
the site.7 1 More specifically, the court stated that "the message to website
operators is clear: if you don't encourage illegal content, or design your
website to require users to input illegal content, you will be immune."72
This case is a landmark for CDA litigation and provides a potential
loophole for litigants in cases involving illegal online activity. If
plaintiffs are able to prove that the website in question had a specific role
in forcing or requiring users into engaging with some sort of illicit
activity, the CDA's immunity could potentially be bypassed." However, it
should be noted that in the years following the Roommates.com decision,
courts have been wary to accept the court's analysis, deeming it an
unusual case based around a rare, specific set of facts-i.e., in order to
use the site users had to post facially illegal information.7 4 Courts have
expanded on the Roommates.com ruling finding that "while requiring
users to engage in illegality might defeat the immunity, encouraging or
even endorsing allegedly defamatory statements by users probably does
not."" While this case is a strong exception to the CDA's immunity, it is
an incredibly high threshold to meet." Even so, these decisions, coupled
with an increasing awareness of § 230 and activities conducted online,
could provide effective loopholes around publisher immunity in cases
involving defamation and criminal activity on the Internet. More
importantly, this may be an effective route for plaintiffs to follow in
litigation involving terrorist organizations and material contributions to
terrorist-funded groups via online networks.

68. Id. at 1161-62.

69. Id
70. Id. at 1174-75.
71. Id.
72. Id at 1175.
73. Id
74. Alger, supra note 26, at 35.
75. Id
76. Id
2017] FACEBOOK, DEFAMATION AND TERRORISM 173

C The MaterialSupportStatute and Its Connection to Terism

Online
The Material Support Statute has come into the spotlight recently
due to an increasing number of cases filed in the wake of modem
terrorist attacks invoking the statute. These lawsuits are centered around
the idea that while it is difficult to pinpoint directly who is fully involved
in, and responsible for, acts of terror committed both domestically and
abroad, some liability should fall onto major web-based companies who
allow certain terrorist funded profiles and webpages to be created and
remain unmonitored on their platforms." First, it is necessary to discuss
the foundation of the Material Support Statute and what its main purpose
is in conjunction with terrorism. Second, it is important to discuss the
historical case precedent surrounding the statute and address the question
of what constitutes material support for terrorism, both on and offline,
under the U.S. Constitution.
Created in the mid-1990s as part of the Patriot Act, 18 U.S.C.
§ 2339A and § 2339B are central to combating terrorism both abroad
and on U.S. soil." Section 2339A specifically prohibits "support[ing] or
concealing support for the crimes a terrorist has committed or may be
planning to commit."7 9 Section 2339B is a little more specific in that it
"condemns providing material support to foreign terrorist organizations
that engage in such offenses."o This directly correlates to terrorist
groups that are already known, e.g., Al Qaeda, Hamas, and ISIS, while
§ 2339A connects to issues that involve terrorism in a more general
sense. Material support is a relatively broad and inclusive term,
including both tangible and intangible goods. 8 2 This means that material
support can be in the form of written or oral guidance, as well as
something like physical currency, weapons, or transportation. These
charges are serious, resulting in imprisonment ranging from fifteen to
twenty years along with steep fines ranging up to half a million dollars
for the most serious offenses.84 It is important to note that these are
federal, criminal offenses, and no civil causes of action may arise from

77. SeegenemlyFields v. Twitter, Inc., No. 16-CV-00213-WHO, 2016 WL 6822065 *1

(N.D. Cal. Nov. 18, 2016).
78. See CHARLES DOYLE, CONG. RESEARCH SERV., R41333, TERRORIST MATERIAL
SUPPORT: AN OVERVIEW OF 18 U.S.C § 2339A AND § 2339B 1 (2016).
79. Id at 2; see 18 U.S.C. § 2339A (2009).
80. DOYLE, supm note 77, at 13; see 18 U.S.C. § 2339B (2015).
81. DOYLE, supia note 77, at 13.
82. Id. at 13,17.
83. Id at 8, 16.
84. Id at 9, 20.
174 TULANE I OFINT'L & COMP LA W [ Vol. 26

violations of the Material Support Statute." However, 18 U.S.C. § 2333

permits U.S. citizens harmed by terrorism abroad to collect damages
under §§ 2339A and 2339B.86
While sensible in its goals, the material support statute was met
with an onslaught of litigation questioning the statute's definitions of
what exactly constituted material support under the Constitution.87 In the
famous case, Holder v HumanitarianLaw Projec4 the Supreme Court
decided the fate of interpreting the Material Support Statute and held that
the statute's provisions were not in violation of the First Amendment." In
Holder, the plaintiffs contested the constitutionality of the Material
Support Statute, holding that their active support for the peaceful features
of the Kurdistan Workers' Party and the Liberation Tigers of Tamil
Eelam, both documented terrorist organizations under § 2339B, violated
their right of free speech and association under the First Amendment.89
The plaintiffs, consisting of U.S. citizens and organizations, argued that
they wished to support the "humanitarian and political activities" of the
two groups via donations, education, and "political advocacy," despite
the organizations' involvement in terrorist attacks that killed numerous
American citizens.o The crux of the plaintiffs' argument rested on the
fact that they wished to provide material support to the peaceful parts of
the two terrorist groups, making a blanket ban on all of these activities
unconstitutional." In further contravention to the plaintiffs' argument,
Congress amended the statute in 2001 redefining material support to
include "expert advice or assistance." 92
The Court found that the statute was not overly vague and in
violation of the Constitution like the plaintiffs contended, holding that
providing material support in the form of "training," "expert advice or
assistance," "service," or "personnel" could all be barred in conjunction
with terrorist organizations under the Constitution." The Court also held
that the statute "'does not prohibit independent advocacy or expression
of any kind ... [and] does not prevent [plaintiffs] from becoming
members of [the organizations] or impose any sanction on them for

85. Id. at 23.

86. RUANE, supra note 54, at 20.
87. See, eg., Holder v. Humanitarian Law Project, 130 S. Ct. 2712, 2712 (2010).
88. Holder v. Humanitarian Law Project, 130 S. Ct. 2712, 2712 (2010).
89. Id. at 2713.
90. Id. at 2714-15.
91. Id. at 2715.
92. Id.
93. Id at 2722-29.
2017] FACEBOOK, DEFAMATION AND TERRORISM 175

doing so."' Instead, the statute limits the plaintiffs' ability to provide
support, whether it is tangible, like monetary contributions, or intangible,
like training and education via verbal communications." Essentially, the
Court reasoned that speech that provides sensitive information, specific
knowledge, or trains someone in a specific skill furthers terrorism in this
type of scenario.
The Holder decision has been widely criticized by activist groups
and politicians alike, who argue that the decision's severe attitude towards
most types of generalized assistance and educational training services
with these types of groups is harmful towards citizens directly affected
by foreign conflicts, who usually seek out these organizations for shelter
and aid.97 Many also argue that it disrupts potential peace discussions by
limiting most types of beneficial contact with U.S. designated terrorist
groups." In the years following the Holder decision, the rise of the
Internet has made it exceptionally simple for terrorist organizations to
disseminate information and garner support for their organizations
through the web.99 A lack of Internet background checks on social media
sites have led terrorist organizations to create various profiles on pages
throughout Twitter and Facebook, with a recent study producing data that
ISIS controlled approximately 30,000 Twitter accounts in 2014.'" In
light of these recent events, legal scholars have begun to wonder whether
providing social media accounts to terrorists, like those provided via
Facebook and Twitter, should constitute a violation of § 2339B.'o
Furthermore, the issue behind suing a social media giant in connection
with § 2339B of the material support statute is the requirement that the
site has requisite knowledge or some kind of role in the organization and
its illegal and/or violent activities, as well as direct contact with the
terrorist organization itself in the formation of the webpage or online
profile.1 2 Naturally, given the massive scale of Internet sites, like
Facebook and Twitter, courts have remained more lenient towards online
service providers in this context because of the difficulty, nay

94. Id at 2730.
95. Id.
96. Id. at 2743.
97. See Adam Liptak, Court A/fins Ban on Aidng Groups Tied to Terror, N.Y. TIMES
(June 21, 2010), http://www.nytimes.com/2010/06/22/us/politics/22scotus.html.
98. Id.
99. RUANE, supm note 54, at 17.
100. Id
101. Id
102. Id at 18-20.
176 TULANE J OFINT'L & COMP. LA W [ Vol. 26

impossibility, these companies would face in monitoring each and every

profile created on their websites. 3
Despite the difficulties plaintiffs would face in these legal scenarios,
a number of lawsuits have been filed over the past two years demanding
that sites, such as Twitter, Facebook, YouTube, and Google, take
responsibility for acts of terror in the United States and abroad.'" The
crux of these arguments is that the sites are providing, via nonaction and
implicit consent, material support to terrorist organizations.' These
cases, explored in the next Part, are combining the legal arguments
behind the Material Support Statute and the CDA in an attempt to place
more responsibility, and liability, on social media sites for acts of terror
and violence committed both domestically and abroad.

III. TERRORISM AND SOCIAL MEDIA-A NEW FRONTIER UNDER THE

CDA AND § 2339B
Three major statutory regimes come into play for plaintiffs filing
lawsuits against social media giants under the Material Support Statute in
relation to terrorist materials disseminated online: The Anti-Terrorism
Act, the Material Support Statute, and the CDA." Under 18 U.S.C.
§ 2333, or the Anti-Terrorism Act, American citizens and their families
may recover damages in a private civil lawsuit for any injury to "[their]
person, property, or business by reason of an act of international
terrorism.""' This incorporates § 2339A and § 2339B, which courts have
held to involve international acts of terrorism.'" Therefore, plaintiffs may
invoke the Material Support Statute in a civil suit for damages against
entities for online posts in connection to acts of terror. However, this
argument will only succeed if the entity in question is involved in the
creation of the online content and is not merely the publisher of the
information, falling outside the liability exception of the CDA.'"
A case filed in California in 2016 has attempted to combat
international terrorism by arguing that culpability and liability should be
placed on Internet providers, such as Twitter, Facebook YouTube, and
Google, for terrorist attacks organized via the Internet that resulted in

10 3. Id.
104. See, e.g, Fields v. Twitter, Inc., No. 16-CV-00213-WHO, 2016 WL 6822065, at *1
(N.D. Cal. Nov. 18, 2016).
105. Id
106. See 18 U.S.C. § 2333 (2009); 18 U.S.C. § 2339A (2009); 18 U.S.C. § 2339B (2015);
47 U.S.C. § 230 (1998).
107. See 18 U.S.C. § 2333(a) (2016).
108. RUANE, supra note 54, at 20.
109. See generallyBlumenthalv. Drudge, 992 F. Supp. 44,52 (D.C. Cir. 1998).
2017] FACEBOOK, DEFAMATION AND TERRORISM 177

injuries to U.S. citizens.' The recent decision in Fields v Twitter has

shed some light on the potential avenues for legal recompense for victims
of terrorism and has also highlighted just how broad the CDA's
interpretation and publisher immunity extends."'
In Fields, the widows of U.S. contractors killed in Amman, Jordan,
during an ISIS attack, brought suit against Twitter, alleging that Twitter
had provided material support to ISIS under § 2339B by giving them
Twitter accounts, and that these accounts were generally linked to their
husbands' deaths abroad." 2 More specifically, Fields and Creach were
government contractors who were assigned to the International Police
Training Center in Amman, Jordan, when Anwar Abu Zaid, a Jordanian
police captain, snuck an assault rifle and other weapons into the center
killing the two men."'3 Following the attack, ISIS claimed responsibility
for the deaths, acknowledging that the attack was planned."' The widows
of the contractors brought suit against Twitter in a fairly unique way.
They did not allege that Twitter was directly involved in the attack via
recruitment or communication with ISIS leaders, nor did they allege that
ISIS members even viewed these ISIS propaganda Twitter accounts prior
to the attack."' Instead, they raised the argument that Twitter violated
§§ 2339A and 2339B, vis-d-vis § 2333 of the Anti-Terrorism Act, by
knowingly contributing material support to ISIS and other terrorist
organizations online."' They argued that Twitter, by allowing ISIS
sponsored profiles to exist and distribute information on its website,
aided and facilitated the terrorist attacks in Jordan and directly related to
the deaths of the American contractors in Amman."' The lawsuit, in
essence, stated that while ISIS may not have directly recruited Abu Zaid
via Twitter, nor directly organized the attack via Twitter, "the attacker was
generally inspired by propaganda that he had seen on Twitter," creating
an overarching link between the website and the ISIS attacks."'
Twitter launched an obvious counterattack to the widows' argument
by invoking § 230 of the CDA, claiming that because they were merely a
publisher of online information, and not the direct contributor of the

110. Fields v. Twitter, Inc., No. 16-CV-00213-WHO, 2016 WL 6822065, at *1(N.D. Cal.
Nov. 18, 2016).
111. RUANE, supra note 54, at 22; see also Fields, 2016 WL 6822065, at *1.
112. See Fields, 2016 WL 6822065, at *1.
113. Id
114. Id.
115. Id at *2.
116. Id. at * 1-2.
117. Id
118. RUANE, supra note 54, at 22.
178 TULANE J OFINT'L & COMP LAW [Vol. 26

content itself, they were immune under the statute and could not be held
liable in relation to a federal, criminal offense, such as those punishable
under §§ 2339A and 2339B."9 The plaintiffs had two major arguments
that they presented in response to Twitter's claims of immunity.'20 First,
the plaintiffs argued that content was not the issue in this scenario but
rather Twitter's "provision of services" and the profiles that were freely
given to ISIS.121 Second, they invoked the "direct messaging service" that
Twitter offered, arguing that these private messages do not amount to
published materials, removing immunity from these types of
communications under § 230.122 The court rejected both of these
arguments using prior § 230 case law that discussed the broad application
that the statute provided for third party content on a website, such as
Twitter.1 23 The court, invoking case law from the Ninth Circuit, also
found that Twitter's decision to grant accounts to particular individuals
for the purposes of posting content, as well as removing the content
should Twitter see fit, related to their role as a publisher-even if the
accounts in question involved ISIS.1 24 Furthermore, the court was not
convinced by the plaintiffs' argument regarding private messaging.'25 The
court turned to precedent to determine that "in defamation law, the term
'publication' means 'communication [of the defamatory matter]
intentionally or by a negligent act to one other than the person
defamed."' 26 Applying this definition, the court found that Twitter was
still only a publisher of the information conveyed via direct messages,
because whether or not the information was made publicly available was
non-consequential to Twitter's role as an ICS.'27 In conclusion, the court
held that Twitter, even in providing accounts to ISIS agents and
permitting private messaging through its direct messaging service, was
still merely acting in its role as a publisher and was immune from
liability for acts of terror committed abroad.1 28
In the wake of the Fields case, a variety of other lawsuits, alleging
similar arguments and facts, have been brought against online
companies, including YouTube, Google, Twitter, and Facebook. Another

119. Fields, 2016 WL 6822065, at *3-5.

120. Id. at *5.
121. Id
122. Id at *5-10; see also RuANE, supm note 54, at 23.
123. Fields, 2016 WL 6822065, at *5-10.
124. Id.
125. Id. at *10-1l.
126. Id at *10.
127. Idat*10-ll.
128. Id
2017] FACEBOOK, DEFAMATION AND TERRORISM 179

lawsuit was filed in the Northern District of California by the father of

one of the victim's killed in the Paris attacks in 2015.129 That lawsuit
similarly alleged violations of the Material Support Statute, met by
vehement denials of involvement from Twitter, Facebook, and Google, as
well as a request for dismissal under the CDA's publisher immunity
clause.'30 On top of publisher immunity, these sites are also invoking
their disclaimers, stating that sites, like Facebook and Twitter, have
prominent anti-violence and antiterrorism rules in connection to their
platforms. 3 ' However, critics of the websites state that while these rules
may be listed, little is done about enforcing them, despite much of the
power about what content and users should be removed remaining with
the sites themselves.'32 Another lawsuit was filed against Twitter, Google,
and Facebook this past December by family members of victims of the
Pulse nightclub shooting in Orlando, Florida, alleging that the companies
"'knowingly and recklessly' provid[ed] ISIS with user accounts 'as a tool
for spreading extremist propaganda, raising funds, and attracting new
recruits.""3 3
What these cases have displayed is that while it is in the country's
interest to ensure that the families of victims of terrorist attacks in both
the United States and abroad have proper channels to receive
compensation for such tragedies, it is difficult to say that an amendment
of the CDA that generally pushes liability onto websites would enact
positive change or stop terrorism's facilitation through the Internet. The
connection that these websites have to terrorist organizations is tenuous,
with their sites only acting as a platform for third parties to provide
content wholly separate from the company and its employees. While it is
attractive to sue websites, like Facebook, in connection to such attacks
domestically and abroad, where other potential defendants may be
unknown or impossible to sue, it is quite probable that allowing such
claims to succeed in court could leave devastating effects on Internet
providers and would open the door to claims beyond terrorism, allowing

129. See Pais Victim's FatherSues Twitter, Facebook, Google Over ISIS, CBS NEWS
(June 15, 2016, 9:50 PM), http://www.cbsnews.com/news/paris-attacks-victim-sues-twitter-
facebook-google-youtube-isis-nohemi-gonzalez/.
130. Id.; see also Jacob Bogage, Family of ISIS Pans Attack Victhm Sues Google,
Facebookand Twitter, WASH. POST (June 16, 2016), https://www.washingtonpost.com/news/the-
switch/wp/2016/06/16/family-of-isis-paris-attack-victim-sues-google-facebook-and-twitter/?
utmterm=.7f383919fb8e.
131. Bogage, supm note 130.
132. Id
133. See Michele Gorman, Pulse Victims' Families Sue Google, Facebook and Twitter
Over ISIS Propaganda,NEWSWEEK (Dec. 20, 2016, 5:24 PM), http://www.newsweek.com/pulse-
victims-families-sue-google-facebook-twitter-isis-534407.
180 TULANE J OFINT'L & COMP LAW [Vol. 26

individuals to sue companies generally, in relation to harm caused by

third parties." Furthermore, as recognized by a variety of courts in
litigation pertaining to the CDA, the major issue that arises in such cases
involving Internet content and service providers is the impossibility of
full blown monitoring and blanket bans without some form of
infringement on free speech and the rights of citizens to freely post on
the Internet.'" The court in Fields summarized the issue nicely when it
stated that, should the plaintiffs' argument succeed, "such a policy would
require companies like Twitter to institute (1) expensive and likely
imperfect content-specific controls or (2) broad content neutral
restrictions that suppress content across the board."' Considering the
expenses associated with such a severe monitoring program, coupled
with the onslaught of litigation that these companies would face in light
of the proverbial opening of the floodgates, it would not be surprising if
companies shut their doors completely in the face of such exorbitant
budget changes.' This, unlike what many of the plaintiffs are arguing,
would be in direct contravention to the CDA's purpose.'
While it is true that a general overhaul of the CDA's liability
immunity would potentially cause devastating effects to the online
market, is it really good public policy to completely deny plaintiffs any
sort of recourse against website providers for defamatory or illegal
content posted online? To better understand plaintiffs' options under
today's current CDA scheme, let us take a hypothetical character, Joe, a
small-town resident who is running for a local political position in his
area. Joe hears, from a friend, that a local, anonymous blog and gossip
site has been spreading hurtful and defamatory rumors about him,
claiming he is a drug abuser and a gambling addict, in an attempt to deter
locals from voting for him. The site is anonymous, so while Joe could
potentially track down the individual posters via an liP address search to
discern their identity for a lawsuit, it would make more sense that Joe
would want to sue the gossip site in an attempt to remove the information
and gain recompense for the harm to his reputation. However, under the
CDA, the gossip site is immune as a mere publisher of the third party
content, unless in the course of its operations it requires defamatory or
illegal posting, a unique situation that has not been brought up in any

134. Alger, supra note 26, at 31.

135. Fields v. Twitter, Inc., No. 16-CV-00213-WHO, 2016 WL 6822065, at *1l (N.D.
Cal. Nov. 18, 2016).
13 6. Id.
137. Id
138. Id
2017] FACEBOOK, DEFAMA4TION AND TERRORISM 181

scenario outside of the Ninth Circuit Roommates.com decision.'" This

leaves the common plaintiff out of most options, forcing him to either
pursue a separate lawsuit against the individual posters, something he
may not have the time or resources to do, or, if the posters are
anonymous and cannot be found, this leaves him with no recourse at all.
This logic applies to the antiterrorism CDA litigations as well, leaving
the families of terrorism victim's helpless under the statute since most
terrorist attacks are conducted abroad, the attackers are unknown, or the
attackers are killed during the attack. So, what potential changes can the
legislature make to the CDA to ensure that both individual citizens, as
well as large-scale, online companies, are protected under the law?
While it could potentially be difficult in its application, there are
two possible routes that courts, or Congress, could take to alleviate the
discriminatory effect that the CDA has on the average plaintiff.40 First,
some scholars and companies have suggested that a report and remove
system, coupled with an amendment to the CDA to include such
scenarios in its text, might be the best answer for both individuals and
companies. 4 ' This type of amendment would push liability onto ICSs
when they are on notice of defamatory or illegal content on their site and
refuse to remove it.'4 2 It is also important to note that in light of the rising
number of terrorism related webpages and complaints that companies,
like Facebook and Twitter, have been receiving, these sites have openly
stated that they are employing global teams, language experts, and
counterterrorism experts to review terrorism linked content, or
potentially dangerous content, at all times.1 43 While it could be
potentially difficult for major websites to monitor posts that they receive
notice of around the clock, it seems that these sites are already willing to
do this, at least in connection to antiterrorism measures, and such an
amendment to the CDA would further this goal.'" Another amendment
to the CDA that could lead to vast improvements in online defamation

139. See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
1157, 1175 (9th Cir. 2008).
140. See Burke, supra note 6, at 257-58; see also Spiccia, supranote 6, at 408.
141. See Burke, supranote 6, at 257-58; see also Spiccia, supranote 6, at 408.
142. Burke supm note 6, at 257-58.
143. See Alejandro Alba, Facebook Responds to Change.orgPetition CriticizingIts Anti-
Terroism Policies Followhig Terrorist Attacks, N.Y. DAILY NEWS (Dec. 9, 2015, 2:02 PM),
http://www.nydailynews.com/news/world/facebook-responds-criticism-anti-terrorismpolicy-
article-1.2460276.
144. See Press Release, Facebook, Global Internet Forum to Counter Terrorism To Hold
First Meeting in San Francisco (July 31, 2017), https://newsroom.fb.com/news/2017/07/global-
internet-forum-to-counter-terrorism-to-hold-first-meeting-in-san-francisco/.
182 TULANE L OFINT'L & COMP LAW [Vol. 26

suits is an overhaul of the definition of an ICP 5 Some scholars, like

Michael Burke, have argued that this "would enable courts to distinguish
between websites that do nothing to encourage the illegal content ...
from websites such as Roommates ... that encourage and are aware of
the illegal content being generated on the websites they operate."46 This
expanded definition could also include the aforementioned report and
remove the tactic that websites, like Facebook, are starting to
implement.'4 7 Once the ICS is notified of a defamatory or terrorist
related post, it is their duty to remove the content, otherwise they run the
risk of liability under both of these proposed changes.'4 8
A second method of improving CDA litigation is to adopt the Ninth
Circuit interpretation of the CDA that denies such expansive protection
for ISPs under § 230.1'4 This would mean that courts could apply the
Roommates. com solution of determining whether the website in question
has made a material contribution or has encouraged or required the
posting of illegal information."' This could apply to sites that encourage
discrimination (such as the Roommates.com case), sites that encourage
defamation (like anonymous gossip sites), or could include websites, like
Facebook, if they encourage some sort of false or illegal content to
remain unchecked."' This would push liability beyond anonymous third
parties and allow recourse against the computer services as well.'52 This
could also be applied to terrorism lawsuits, allowing the families of
terrorism victims to bring allegations against websites if they had an
actual role in perpetrating or encouraging the illegal content posted on
the site under the CDA and §§ 2339A and 2339B, both of which address
material support and contributions to the illicit content.' Finally, this
would create beneficial changes to the Internet by encouraging the
shutting down or removal of harmful, rumor-based websites while
encouraging "websites that serve other purposes [to] closely monitor
their sites to ensure they do not do anything to encourage defamatory
content."' 54

145. Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
1157, 1175 (9th Cir. 2008); Burke, supm note 6, at 257-58.
146. Burke, supia note 6, at 257-58.
147. Id
148. Id
149. Id. at 256-57.
150. Id.; see FairHous., 521 F.3d at 1175.
151. Burke, supm note 6, at 257-58.
152. Id
153. See 18 U.S.C. § 2339A (2009); 18 U.S.C. § 2339B (2015); 47 U.S.C. § 230 (1998).
154. Burke, supa note 6, at 257.
2017] FACEBOOK, DEFAMATION AND TERRORISM 183

It helps to put these possible new applications and amendments into

perspective, so let us revisit the hypothetical presented earlier involving
Joe, the local elections, and the gossip website. Under these new legal
interpretations of the CDA or a statutory amendment, Joe could now sue
the gossip site for defamation if he puts them on notice that the content is
defamatory and harmful to his reputation.'" The site could do a number
of things in return. As suggested in Patricia Spiccia's article, The Best
Thng in Life Are Not Free: Why Inmunity Under Section 230 of the
CommunicationsDecencyAct Should Be Earnedand Not Freely Given,
the site could respond to Joe, acknowledging receipt of his complaint,
and then implement measures to remove the content and potentially
block the user.' If the website fails to do so, Joe could then sue them for
liability arguing that they were on notice of the defamatory content and
failed to act in violation of the statute.' The second route that Joe could
argue, if the court began implementing the Ninth Circuit's material
contribution interpretation from the Roommates.com decision, is that the
gossip site, by default, knowingly encourages the posting of defamatory
information and is liable for materially contributing to the content.'
Joe could also argue his case via other Ninth Circuit CDA
interpretations, possibly invoking the theory of promissory estoppel, like
in Barnes v Yahoo!, or a duty to warn, like the Internet Brands case.'
However, these are fairly limited in their scope and application, and Joe
would have to produce a pretty specific set of facts to invoke these two
interpretations of the CDA. For example, Joe could probably bring up
the theory of promissory estoppel promulgated in Barnes if he relied on
the gossip site's assurances that they would remove the defamatory
content, the content was never removed, and Joe suffered some sort of
harm from the posts remaining up, which, in our hypothetical, would
probably his loss of the local election.' Duty to warn, as seen in Internet
Brands, would come into play if Joe suffered some sort of palpable harm
or was the victim of criminal or tortious conduct after being induced by a
false advertisement or posting on the website."' This goes to show that

155. See Spiccia, supra note 6, at 413-16.

156. Id.
157. Id
158. See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
1157, 1175 (9th Cir. 2008); Burke, supranote 6, at 257-58.
159. See Jane Doe No. 14 v. Internet Brands, Inc., 824 F.3d 848, 848 (9th Cir. 2016);
Bames v. Yahoo!, Inc., 570 F.3d 1098, 1109 (9th Cir. 2009).
160. SeeBames,570F.3dat1109.
161. SeeInternetBonds, 824 F.3d at 848.
18 4 TULANE J OFINT'L & COMP LA W [ Vol. 26

while there are some more modem takes on the CDA, they are still
incredibly difficult in practice.
Would these new methods of interpretation work in connection to
the plaintiffs in Fields and other suits involving international terrorism?
While it is difficult to say whether Fields would perfectly fit into the
above scenario, these types of lawsuits would most certainly benefit from
a change in legislation or new case precedent. The widows in Fields
could connect the material support statute §§ 2993A and 2993B to the
Ninth Circuit's interpretation of websites materially contributing to the
posting of illegal content.1 62 It would also be far easier for victims of
terror and their families to sue websites, like Facebook and Twitter, under
an amended CDA and a notice and report system.1 63 In that instance, if
Facebook was made aware of terrorist content posted by organizations,
such as ISIS, either domestically or abroad, Facebook failed to remove
the page, and the page or its contents were linked more directly to a
specific attack or to terrorist recruitment efforts, Facebook would be
liable and this would facilitate recovery for the plaintiffs.'" It will be
interesting to see whether any of these new litigations filed pertaining to
terrorism encourage the U.S. courts to adopt the Ninth Circuit's
perspective from cases, such as Roommates.com, or whether Congress is
encouraged to amend § 230 of the CDA to adapt to the ever expanding
prowess of the Internet. Furthermore, this issue may be one that needs to
be addressed globally, as other countries begin to analyze questions of
liability involving companies with such a strong global presence.

IV. THE RISE OF ONLINE ANTITERRORISM LITIGATION IN EUROPE

Lawsuits involving online defamation via terrorist propaganda

pages have spread across the Atlantic into Europe, bringing up questions
of individual privacy laws in conjunction with free speech. A German
court in a high profile case filed by a Syrian refugee against Facebook,
recently held that Facebook was immune from liability for defamatory
posts made about the refugee because it had not edited the content in any
way and it was not actually dispensing the information."' The case was
filed earlier this year by Anas Modamani, a Syrian refugee living in
Berlin, who posed for a selfie with German Chancellor Angela Merkel

162. See FairHous.,521 F.3d at 175 (9th Cir. 2008).

163. Burke, supmnote 6, at 257-58.
164. Id
165. See Melissa Eddy, Se/lie with Merkel by Refugee Became a Legal Case, but
Facebook Won in German Cour N.Y. TIMEs (Mar. 7, 2017), https://www.nytimes.com/2017/
03/07/business/germany-facebook-refugee-selfie-merkel.html?_r=0.
2017] FACEBOOK, DEFAMATION AND TERRORISM 185

back in 2015."' The photo went viral throughout Germany, and

Modamani became a major symbol for Merkel's views on immigration
and for refugees throughout Germany.' 7 However, the photo was also
manipulated and used in Facebook posts falsely linking Modamani to
terrorist attacks throughout Europe including the Brussels attacks, the
Berlin Christmas market attack, as well as an especially disturbing attack
involving a homeless man in Berlin."' Modamani brought suit in the
court of Wurzburg in February 2017 seeking an injunction against
Facebook, requiring them to remove any and all content that connected
him to terrorism in any way."'
Modamani's argument centered around the German Constitution,
which "guarantees a right to the 'free development of the individual,'
which is understood to include the right to personal privacy and to
determine the extent to which a person appears in public."7 e Modamani
also requested that the defamatory content be removed from Facebook,
which Facebook failed to do in full. 7 ' Facebook countered by arguing
that it had no feasible way of knowing every page that used Modamani's
picture in a defamatory manner, making it impossible for them to remove
and block all of the content as requested.1 72 The German court, taking an
approach similar to courts in the United States, found that Facebook was
not liable for the defamatory content pertaining to Modamani because it
"had not in any way manipulated the content, which would have made it
legally responsible for the distribution.""' The judge also invoked
European Union (EU) law, stating that "a host provider ... could be held
responsible for eliminating content from its site only when it was
considered technically possible." 74 Because Facebook had testified that
it would be impossible to remove all of the content pertaining to
Modamani, even when placed on notice of the defamatory posts,
Modamani's argument failed under EU law as well as local law.'17
The Modamani selfie case highlights the important struggle
between personal privacy and social media outlets that courts in the EU
are facing on a more frequent basis, like the United States. The German

166. Id
167. Id
168. Id; seeEddy, supra note 7.
169. See Eddy, supra note 7.
170. Eddy, supranote 165.
171. Id
172. Id.
173. Id
174. Id
175. Id
186 TULANE I OFINT'L & COMP LAW [Vol. 26

court, in an argument similar to those seen in the United States, found

that the third party responsible for the post and its contents is liable to
Modamani, but Facebook escapes under both state and EU law."'
Furthermore, the court upheld the idea that Facebook, which has
processes for removing inappropriate content and flagging dangerous
posts, can still escape liability even when it is on notice that posts may be
illegal or harmful in nature.'" It is also important to note that another
German court in Bremen sentenced a man to prison for six months and
two weeks for insulting refugees on a Facebook page, yet Facebook itself
was not involved."' This further supports the idea that while third parties
are legally responsible for content they post online, Facebook remains
free of liability, even in the most extreme cases of defamation.
Germany and other EU countries must also answer the question,
what can the courts do to change the outcome of such cases and offer
compensation to those whose reputation is harmed online? Similar to the
United States, the answer remains unclear. Yet, advocates for individual
rights in Germany and other countries in the EU argue that the
Modamani case is an important step in shifting online liability as it points
out which specific laws need to be adjusted to protect individuals'
privacy online.' Germany is a country that is especially concerned with
the implication of online propaganda since it may pose a risk to the
country's elections coming up next September.8 0 For now, it seems that
the EU is sticking to a similar analysis to America, granting immunity to
social media sites based on the sheer size of these companies, coupled
with the potential risk for increased numbers of lawsuits should the law
be amended or changed. It may be beneficial for Europe to introduce a
report and remove policy, as has been suggested in the United States, or
to amend EU e-commerce laws or local laws to reflect online terrorist
propaganda and defamation in a clearer manner.
Despite these cases springing up in various courts around the globe,
seemingly identical types of claims are being analyzed in a similar
fashion, and courts in various countries are having to figure out how to
address issues of individual privacy in the online era. Tech giants, like
Facebook, whose presence has expanded beyond the United States to
assume a global role, may actually produce the most effective and

176. Id
177. Id
178. Id
179. Id.
180. Eddy, supra note 7.
181. See Burke, supm note 6, at 257-58; see also Spiccia, supra note 6, at 408.
2017] FACEBOOK, DEFAMATION AND TERRORISM 187

positive change for Intemet-related lawsuits should the onus be on them

to take the first steps at preventing online defamation and terrorism.
Sites have already begun to institute antiterrorism and antidefamation
departments whose responsibility it is to respond to posts that have been
flagged as dangerous. It is quite possible that if a company, like
Facebook, took the reins and began implementing global, site-wide
policies, such as a notice and report system that applied worldwide, this
could prompt courts, particularly in technology heavy areas, like the
United States, Europe, and Asia, to adapt their laws to protect consumers
more effectively. If Facebook's actions prompted responses from the U.S.
Supreme Court and high EU courts, like the European Court of Justice,
this could have immensely beneficial effects for future online consumers.
While courts worldwide are presently remaining on the side of
companies in defamation and terrorist litigation, these problems will
endure as the Internet continues to take on a more important role in the a
daily lives of U.S. and foreign consumers.
In conclusion, the answer to how we can make the Internet a more
welcoming place for plaintiffs remains unclear. However, it is
encouraging to see courts beginning to analyze these issues of terrorism,
defamation, and damaged reputation in a more consumer-oriented light.
Some courts, like the U.S. Ninth Circuit, are beginning to devise crafty
ways around publisher immunity, and lawyers are taking creative
arguments, like promissory estoppel, duty to wam, material support to
terrorist organizations, and placing the website on notice, to protect
individuals harmed locally and abroad. As the Internet continues to take
on a stronger presence worldwide, it is inevitable that the current
legislation will need to be revisited and adapt to the modem Internet user.