Il figlio di un signore cita in giudizio Facebook (Fb) ritenendolo responsabile per non aver colto dai post che un suo utente (Stephens) aveva manifestato intenzioni omidice (poi concretizzatesi nell’uccisione del padre) e non aver avvisato le autorità
Questo il post tragicamente premonitore e valorizzato dall’attore : < FB my life for the pass year has really been fuck up!!! lost everythingever 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.>
la corte di appello dell’Ohio nega la responsabilità di Fb (si tratta di EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA, 8 ottobre 2020, Godwin c. Favcebook, n. 109203 )
I titoli azionati sono cinque (§ 4 e 15) :
<(1) common law negligence for failing to warn of Stephens’s propensity for violence of which Facebook was aware based on its data-mining practices; (2) civil recovery for a criminal act in failing to report a terrorist threat made by Stephens; (3) statutory negligence for failing to warn the public of Stephens’s published threat in violation of R.C. 2921.22; (4) wrongful death; and (5) survivorship.>, suddisibili in due filoni: <those five claims can be separated into two discrete veins of liability that will be separately addressed: the negligence claims and the statutory right-to-recovery claims>
Qui vediamo il primo (sub 1): c’era un dovere per Fb di controllare la condotta dell’uente tramite il monitoraggio algoritmico dei post? <It is well settled that there is no duty to control the conduct of a third person to prevent the commission of physical harm to another person “unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relationship exists between the actor and the other which gives to the other the right to protection.”>, § 17.
La risposta è positiva per l’attore. .
In generale un simile dovere non c’è : <there is generally no duty to control the conduct of a third person to prevent harm to another even though “the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself.”….. Godwin’s reliance on Facebook’s ability to control its users’ conduct does not give rise to a duty to control them as contemplated under Ohio law>, § 21.
Aveva però Fb una special relationship con l’utente tale da creare un dovere di controllo? infatti <“In the absence of a special relationship sufficient to trigger one of these exceptions, a private party is not liable for failing, either intentionally or inadvertently, to exercise control over the actions of a third party so as to protect others from harm>, § 24.
Per la corte di appello, invece, non c’era tale speciale relazione: <In this case, there are no allegations supporting a theory that Facebook voluntarily or involuntarily took charge of Stephens such that the duty to wield its control over Stephens arose. This type of taking-charge relationship is exemplified by the physician-patient or psychiatrist-patient relationship, which “arises from an express or implied contract between the physician and patient and imposes on the physician a fiduciary duty to exercise good faith” in treating the patient…. . Similarly, other states have relied on Section319 in imposing liability for the non feasance of a parole or probation officer who took charge of a released offender>, § 27
in altre parole <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>, § 27.
In subordine, Godwin chiede alla corte <to declare that a social media business shares a special relationship with its customers because the “no duty to act” rule is “revolting to any moral sense” and is “inherently unfair.”>
Ma non gli va bene nemmeno questa domanda: <In this respect, Godwin maintains that common law foreseeability analysis would result in the imposition of a duty upon which Facebook could be deemed liable. This line of argument is without merit. “Foreseeability alone does not create a duty; instead, it is one of a number of factors that must be considered>, § 28
Secondo l’opinione concorrente ma separata del giudice Patricia Ann Blackmon, l’opinione della maggioranza è de iure condito corretta, anche se è moralmente sia giusto gravare Fb del dovere di monitoraggio. Tocca però al legislatore provvedere, non ad un giudice: § 39 e 47.
[notizia appresa dal blog di Eric Goldman ]