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Lawsuits Accusing Facebook of Aiding Hamas Terror Tossed

A New York federal judge Thursday dismissed two lawsuits against Facebook that had alleged the company allowed Palestinian terrorist groups such as Hamas to use its social media platform to recruit members and incite violence, finding that one claim lacked standing and another failed to state an actionable claim.

Judge Nicholas G. Garaufis did agree with the plaintiffs in the case brought by Stuart Force that it had jurisdiction over Facebook, but agreed with Facebook that the Communications Decency Act had granted platforms broad immunity from such claims, especially when speculative. Judge Garaufis found in what he believes represents a novel evaluation that the CDA was not, as the Force plaintiffs argued, inapplicable because the terrorists involved and their activities resided outside of the U.S.

“No other court appears to have addressed the presumption against extraterritoriality in the context of a statute which limits liability or imparts immunity,” Judge Garaufis said. “In light of its focus on limiting civil liability, the court concludes that the relevant location is that where the grant of immunity is applied, i.e. the situs of the litigation.”

Plaintiffs in both the Force case and the Racheli Cohen, et al. lawsuit accused Facebook of making it easier for terrorists to link up and say the social media giant failed to deactivate accounts or prevent the groups from inciting violence.

The Force plaintiffs sought sought $1 billion in compensatory damages, punitive damages and treble damages for violation of federal anti-terrorism statutes on behalf of terror victims and their families. The lawsuit also alleged negligence, breach of statutory duty and vicarious liability under Israeli law.

But while declining to toss the case on jurisdictional grounds, Judge Garaufis did agree that the CDA prevents “prevents courts from entertaining civil actions that seek to impose liability…for allowing third parties to post offensive or harmful content or failing to remove such content once posted.” He also called Facebook’s role in publishing the content an “essential causal element” of the claims, and said holding it liable effectively required the court to treat Facebook as the publisher of Hamas content.

The Force plaintiffs had argued that the U.S. law did not apply to events wholly taking place in the Middle East, but Judge Garaufis did not bite, instead holding that the legislative focus of the relevant part of the CDA was on limiting liability and providing immunity, and thus the relevant “territorial events” or “relationships” were in the place “where redress is sought and immunity is needed.”

The Cohen lawsuit requested only declaratory and injunctive relief based on fear and anxieties endured by 20,000 Israeli citizens living under the threat of possible terror attacks enabled by Facebook. But Judge Garaufis ruled that to establish standing there had to be an injury in fact traceable to the challenged conduct that is likely to be redressed by a favorable decision, and mere possibility of a non-specific, non-imminent attack did not qualify.

“Courts have broadly rejected claims based on the risk of falling victim to a future terrorist attack, concluding that such harms are impermissibly speculative and so insufficient to confer standing,” the ruling said, asserting that the “objectively reasonable possibility” cited by the plaintiffs did not qualify.

He added that while he didn’t doubt the sincerity, fear of an attack cannot be cited as “actual or imminent” injury because “doing so would allow parties to ‘repackage’ their conjectural injury to ‘manufacture standing.’”

Counsel for the defense deferred to Facebook, and a Facebook spokesperson said in a statement the company appreciated the decision.

“Our Community Standards make clear that there is no place on Facebook for groups that engage in terrorist activity or for content that expresses support for such activity, and we take swift action to remove this content when it’s reported to us. We sympathize with the victims and their families,” the statement said.

Earlier in the case, Judge Garaufis had scolded Facebook’s law firm Kirkland & Ellis LLP for sending a young associate rather than a partner to speak in a pre-motion conference, suggesting Facebook and the firm were not taking the allegations seriously. The firm sent partners to a subsequent hearing and apologized, and Judge Garaufis softened his stance.

Counsel for the plaintiffs declined a request for comment.

The plaintiffs in the instant suit are represented by Robert Joseph Tolchin of The Berkman Law Office LLC.

Facebook is represented by Craig S. Primis, Kenneth Winn Allen, Jennifer M. Bandy, Shireen Anneke Barday and T. Aulden Burcher-DuPont of Kirkland & Ellis LLP.

The cases are Force et al. v. Facebook Inc., case number 1:16-cv-05158, and Cohen v. Facebook Inc., case number 1:16-cv-04453, both in the U.S. District Court for the Eastern District of New York.