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The civil rights organization Shurat Hadin– Israel Law Center late on Sunday filed a legal brief to try to keep its two terrorism cases against Facebook alive in face of a motion to dismiss, a tactic the social-media giant has used with total success to date.
The group filed their first case against Facebook in 2015 on behalf of 20,000 Israelis during the first weeks of the “stabbing intifada.”
It was originally named Lakin v. Facebook after American- Israeli Richard Lakin, who was wounded in an attack by two Palestinians armed with a knife and a gun on an Israeli bus. But the name was changed to Cohen v. Facebook after Lakin died of his wounds.
The case seeks an injunction to require Facebook to act more forcefully against incitement.
The second case seeks $1 billion in damages from the terrorist group Hamas on behalf the families of five Israeli victims, including US Army veteran Taylor Force.
Facebook has claimed that the Communications Decency Act bars all legal claims against it for posts by third parties using its platform – a defense that has proved unbeatable to date.
In its brief, Shurat Hadin argued that Facebook was not the intended target of the CDA, which was focused on publishing, and that the social-media platform has powerful algorithms it could use to catch and take down incitement and terrorist communications.
One relatively novel issue is the NGO’s attempt to use the US Anti-Terrorism Act against Facebook and to define Facebook as providing material support for terrorism by letting terrorists use its platform, instead of merely accusing Facebook of failing to control incitement, a less serious charge.
Shurat Hadin admitted that the only decision to date on this issue, earlier this year, went in favor of Facebook.
But it claimed that case was “plainly wrongly decided and an outlier,” since a terrorism claim, unlike an incitement claim, relates not to publishing content but to providing services.
The argument is that even if Facebook is not actively publishing third parties’ content, it is actively providing them the service of its platform.
The NGO said Facebook also cannot deny it has knowledge of the postings, as the lawsuit “contains many factual allegations plausibly demonstrating Facebook’s knowledge, or at the very least deliberate indifference, to the fact that it provides services to Hamas,” with deliberate indifference being the relevant standard.
“For example, Facebook received multiple complaints about a Hamas video calling for and depicting a suicide bombing of a bus full of Jews that appeared on several Hamas Facebook accounts, but Facebook replied that the video did not violate its Community Standards,” the NGO wrote.
A hearing to decide whether the cases will proceed to trial is scheduled for January 19 at a federal court in Brooklyn.