Meta beats hate speech suit over role in Myanmar genocide

(CN) — Meta won’t have to face a suit accusing Facebook of failing to curb hate speech fueling Myanmar’s brutal Rohingya genocide by encouraging violent online content, a Ninth Circuit panel ruled on Tuesday.

The panel found the claims barred under Section 230 of the Communications Decency Act.

“Plaintiffs believe that Facebook’s design, coupled with the darker elements of human nature, caused real-world harm,” U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee, wrote in a 20-page opinion. “But Section 230, as we have interpreted it, bars their claims, and we cannot hold Meta ‘responsible for the unfortunate realities of human nature.’”

Two anonymous Rohingya plaintiffs initiated a class action against Meta in 2022, seeking at least $150 billion for harms from product liability and negligence.

The Rohingya are a predominantly Muslim stateless ethnic group that resides in Western Myanmar. Since 2017, the government of Myanmar has subjected the group to a ruthless genocide resulting in more than 25,000 deaths; over 740,000 have fled to neighboring Bangladesh, fearing continued violence.

A federal judge tossed the case in 2024 due to an expired statute of limitations, but the plaintiffs appealed and urged the Ninth Circuit to reconsider.

The plaintiffs accused Meta of increasing the risk that Facebook would be used to stoke violence against the Rohingya in Myanmar through its mode of operations. For example, the plaintiffs contended that the lack of a Burmese-language platform interface meant users couldn’t report dangerous content. They also argued Facebook lack of content moderators monitoring the platform in Myanmar.

The plaintiffs claimed the platform’s core design and function increased the harms and encouraged users to create violent posts. In particular, the plaintiffs pointed to Facebook’s implementation of an algorithmic content delivery system, which they asserted promoted “toxic posts” because those posts gain more user interaction.

One post from September 2017 said, “These non-human Kalar dogs, the Bengalis, are killing and destroying our land, our water and our ethnic people,” using well-known pejoratives for the Rohingya. “ We need to destroy their race.”

In April 2018, another user posted a picture of a boat filled with Rohingya refugees and wrote, “Pour fuel and set fire so that they can meet Allah faster."

The chairman of a United Nations fact-finding mission said Facebook played a “determining role” in the genocide.

The three-member panel of Ninth Circuit judges, however, were bound by precedent which called for affirming the dismissal.

Congress granted immunity to online companies under a section of the Communications Decency Act of 1996. Under the act, online companies are protected from claims that seek to treat them as “the publisher or speaker of any information provided by another information content provider.”

The plaintiffs asserted the court should consider Myanmar law over the act, but the panel was not convinced.

“At bottom, Myanmar’s interest in protecting its citizens from harmful attacks and misinformation on Facebook, while real, is insufficiently incorporated into the positive law of the country,” Nelson wrote. “Myanmar’s interest therefore does not predominate.”

The Communications Decency Act immunizes liability to entities that meet three conditions:  “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.”

Both sides agreed Meta met the first step, but disagreed on the second. The plaintiffs argued Meta had a duty to build Facebook in such a way that it did not boost posts inciting violence.

“Still, the alleged defects relate to Facebook’s core design as a publishing platform, particularly how Facebook promoted or downplayed third-party posts using algorithms," Nelson wrote. “Under our case law, matching users with content is publishing conduct, even when the user has not requested the content.”

The panel concluded that the plaintiffs’ theories of harm relied on the content of third-party posts rather than on Meta itself and that the company’s algorithmic post matching doesn’t affect coverage under the act.

“Under our precedent, Facebook’s algorithm did not materially contribute to the allegedly unlawful posts here — nor did it contribute to the alleged unlawfulness of that content itself,” Nelson wrote.

U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, wrote separately to concur but addressed the court’s precedent regarding Section 230 of the act, and U.S. Circuit Judge William Fletcher, a fellow Clinton appointee, joined.

“If not bound by Circuit precedent, I would hold that section 230 does not bar the claims raised against Meta in this case because ‘websites’ use of machine-generated algorithms to recommend content and contacts are not within the publishing role immunized under section 230,’” Berzon wrote. “I again — even more emphatically on this go round — urge this court to reconsider en banc our precedent extending section 230 immunity to recommendation of content and connections to users.”

Nelson, too, wrote a separate concurrence to address the scope of Section 230. He said the court has “over-read” the section and strayed from the original public meaning of the statutory text and created an all-purpose liability shield for internet platforms.

“We have taken a strong position that algorithms are almost always third-party publishing activity, and rarely a platform’s own content,” Nelson wrote. “But Section 230’s protection of third-party publishing conduct should reach only ’traditional’ activities of publication and distribution — not every modern activity that bears some remote resemblance to it.”

But Nelson acknowledged the algorithm at the center of this case was based on the “more primitive technology” available in 2009, which made it the wrong case to attempt to correct the appeals court’s precedent.

Neither party responded to a request for comment before press time.