Does Facebook Have an Obligation to Prevent Murder?
These days, we spend a lot of time online - probably more than we should. And for most of us, especially during the pandemic, a good percentage of our after work downtime occurs on social networks. We share (and sometimes overshare) our ups and downs, family celebrations, and in recent months, political opinions. Social media platforms have become a gathering place where we connect, interact, and blow off steam. For better or for worse, social media has become entrenched in our lives.
Now that we share so much information on social media, what happens when someone threatens to commit a crime on a social network? Do the companies that own social media sites have an obligation to scan their sites for these types of threats? If a threat is discovered or reported to them, must they act to prevent it from occurring? Do they have to contact the authorities and report the incident? If they fail to ascertain that the threat was made and/or fail take steps to prevent the threat from becoming reality, are they liable if the person who posted the threat carries it out and injures another?
The Court of Appeals of Ohio recently considered this every issue in Godwin v. Facebook, Inc., 2020-Ohio-4834 (Ohio Ct. App. Oct. 8, 2020). Specifically, the question before the Court was whether civil liability could be imposed against Facebook for failing to report the commission of a felony offense in an effort to prevent it from occurring.
The crime at issue in this case was murder, which arose from the following facts. Steve Stephens was accused of murdering Robert Godwin, Sr., a person who was a stranger to him and whom he chose at random. On the day of the murder Stephens posted the following somewhat cryptic message to Facebook: “FB my life for the pass year has really been fuck up!!! lost everything ever had due to gambling at the Cleveland Jack casino and Erie casino…I not going to go into details but I’m at my breaking point I’m really on some murder shit…FB you have 4 minutes to tell me why I shouldn’t be on deathrow!!!! dead serious #teamdeathrow.” Then, within minutes of publishing the post to Facebook, he murdered the victim.
The victim’s estate filed suit, alleging, among other things, that Facebook “fail(ed) to warn Robert Godwin of Stephens’s dangerous propensity of which Facebook was aware through its data-mining practices, which is the underlying negligence theory upon which the wrongful death and survivorship claims arise…”
At the outset, the Court explained that because Facebook is a “standard commercial business” it only owed a duty to the victim if a there was “special relationship” with him since “businesses do not owe abstract duties to everyone in the world.”
The Court then turned to ascertaining whether a “special relationship” existed, noting that the issue to be determined was whether where Facebook had “taken charge” of a person whom “it knew or should have known was likely to harm to others if not controlled.”
After reviewing the facts of the case at hand, the Court determined that Facebook did not owe a duty to the victim since a “special relationship” between Facebook and the victim simply did not exist:
“At the minimum the duty to act in this case requires an existing relationship between the defendant and the third person over whom ‘charge’ is asserted. Godwin has not cited any authority for the proposition that a social media company ‘takes charge’ of its users to the same extent that a medical or mental health professional takes charge of her patient or a parole or probation officer takes charge of her probationer for the purposes of expanding the theory of liability. Although the line between a contractual, business-consumer relationship and a physician-patient relationship may at one point overlap, this case does not present such a question. The complaint is devoid of any allegations of fact that, if proven, would establish the requisite element of Facebook taking ‘charge’ of its users.”
Then, after considering the additional claims made by the plaintiff, the Court concluded that Facebook was not civilly liable for the victim’s murder.
I wasn’t particularly surprised by this holding, were you? It’s difficult to envision a scenario under which a plaintiff with a similar claim could sufficiently establish either duty or foreseeability, especially given the vague assertions of violence in this case and the fact that the crime occurred nearly immediately after the post went live on Facebook. Even so, it’s an interesting issue, and is one more example of how the blurred the line between online and offline actions has become.
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at firstname.lastname@example.org.