What role do social media providers play in policing the content they host? That’s a question that has been a frequent topic of debate over the past several years, and one that has gained traction post 2020 election. Individuals are increasingly likely to see social media accounts barred or suspended, or have disclaimers published with certain updates. The answer to that question may hinge on a recently filed lawsuit concerning Facebook’s use as a military weapon in…Myanmar.

While most are probably where of the content debates, few likely know Section 230 of the Communications Decency Act of 1996, which actually precludes providers and users from being held liable for information provided by a third party, in most cases.

The three-question test is used to decide if a provider is liable:

  1. Is the defendant a provider or user of an interactive computer service?
  2. Does the plaintiff seek to hold the defendant liable as a publisher or speaker?
  3. Does the plaintiff’s claim arise from information provided by another information content provider?

The Role of Social Media Companies in Developing Content

Thus far social media companies have managed to win legal battles as to whether they are a “information content provider” defined by Section 230 as “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”. When a case involves third-party content, courts routinely focus on the defendant’s role in the “creation or development” of the content, and tend to ignore editing made by the social media platforms.

As the law stands right now, under most circumstances, a message on Facebook that is not true may create a cause of action against the author but not Facebook itself. Without going into the back and forth politics of the current status of the law, it is safe to say there has been movement afoot to try and narrow what an information content provider is through amending Section 230.

Class Action Against Meta Platforms

In a very interesting application (or non-application) of Section 230, in Federal District Court for the Northern District of California, a class action was filed last week by the Rohingya people, a Muslim minority in Myanmar, against Meta Platforms, the company that owns Facebook. The lawsuit complaint, all 70 pages of it, can be broken down into four main points:

  1. Facebook was allowed in Myanmar in 2011, and the Myanmar military has used it as an information operations platform against the Rohingya people;
  2. Not only did Facebook fail to do anything about the spread of disinformation and hate speech, their algorithms promote negative tones and conversations;
  3. According to experts and other media sources, Facebook posts and military activity against the Rohingya people were directly correlated and coordinated;
  4. Section 230 does not apply to Burma law, so Facebook has no legal defense under that part of the Act (which surprisingly may have merit).

Incidentally, the case was removed by Meta Platforms from California state court, where it was originally filed, to Federal court, perhaps to take advantage of the varied civil procedure rules federal court has and to get away from potential state court bias (strictly speculation on my part).

Social Media as a Military Weapon

It has been proven time and time again. Social media is a rapidly spreading platform that nation-states, terrorists, political parties, and other agenda-based groups use to incite fear, sway opinion, and garner support – often through disinformation (such as bots and deepfakes) and timely inflammatory commentary. This case may not involve Section 230 directly (depending on whether the court applies it or not), but it could very well sway policy and raise new legal issues in the near future.

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Joe Jabara, JD, is the Director, of the Hub, For Cyber Education and Awareness, Wichita State University. He also serves as an adjunct faculty at two other universities teaching Intelligence and Cyber Law. Prior to his current job, he served 30 years in the Air Force, Air Force Reserve, and Kansas Air National Guard. His last ten years were spent in command/leadership positions, the bulk of which were at the 184th Intelligence Wing as Vice Commander.