Should Facebook Have a Duty to Report Us to the Police for Felonies Potentially Revealed in Our Posts?

An Ohio judge suggests the answer should be "yes," and an Ohio statute seems to require that when Facebook employees learn of specific felonies revealed by posts that they might be monitoring for some reason.

From Godwin v. Facebook, Inc., decided yesterday by the Ohio Court of Appeals (Judge Sean C. Gallagher, joined by Judge Mary J. Boyle):

Robert Godwin, Sr., Godwin's father, was murdered by Steve Stephens — a video of the murder was briefly posted to Stephens's social media account, part of the social media network that is owned and managed by Facebook, Inc. Stephens committed suicide two days later. Godwin filed a wrongful death action against Stephens's estate, all the while maintaining that the estate is merely a "nominal defendant" in the action. In addition, Godwin included allegations against Facebook for its alleged failure to warn Robert Godwin of Stephens's intention, of which Facebook should have been aware based on a statement Stephens posted before the attack and based on Facebook's in depth and financially motivated use of its users' information. On the day of the tragic events, Stephens posted an ominous, but relatively ambiguous, statement on his social media account. In that message, Stephens stated:

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.

"Minutes" later, Stephens randomly approached Robert Godwin, who was sitting in a local park. Stephens pulled out a handgun and shot him after a brief dialogue.

Plaintiff sued Facebook, on the theories that

1. Facebook should have known about Stephens' dangerousness and should have warned the authorities (as a matter of the common law of negligence) and
2. Facebook did know about the specific threat, and Ohio law imposes a duty to report known felonies (such as terroristic threats) to the police: Ohio Rev. Code 2921.22 requires any "person [who] know[s] that a felony has been or is being committed" to "report such information to law enforcement authorities," and Ohio Rev. Code 2307.60 provides that "Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law."

The panel rejected the negligence claim on the grounds that negligence law generally doesn't impose affirmative duties on one party to protect another. There are some exceptions, such as when the defendant has a special relationship with a dangerous person, for instance when the defendant is a psychotherapist who learns of a specific threat by a patient; but this exception doesn't apply to social media platforms and their users.

The panel also rejected the statutory claim (see here for more on such duty-to-report laws) on the grounds that Stephens's post wasn't a felony "terroristic threat":

Ohio. Rev. Code 2909.23, entitled "making terroristic threat" provides that "[n]o person shall threaten to commit or threaten to cause to be committed a specified offense when … [t]he person makes the threat with purpose to … [i]ntimidate or coerce a civilian population" and "as a result of the threat, the person causes a reasonable expectation or fear of the imminent commission of the specified offense." "Specified offense" is defined, in pertinent part, as a felony offense of violence ….

Godwin's allegations with respect to the statutory claim are limited to the conclusions that (1) the "Facebook Defendants were aware of statements made by Mr. Stephens which constituted threats that were made with the intent to intimidate or coerce a civilian population"; (2) "Mr. Stephens' threats caused a reasonable expectation of the imminent commission of making terroristic threats"; and (3) the "Facebook Defendants were aware that Mr. Stephens was engaged in the commission of a felony." The single factual allegation related to Stephens's statement was that "Steve Stephens, had engaged in criminal conduct by making intimidating and coercive threats of violence." …

Godwin is solely relying on Stephens's statement to demonstrate that a "making terroristic threat" crime was committed against the civilian population, but there are no factual allegations demonstrating that Stephens intended to intimidate the civilian population and as a result of that attempt to intimidate, the civilian population had a reasonable expectation of fear that Stephens would commit a "specified offense." …

Godwin continually alludes to the fact that the basis of the "making terroristic threat" crime is Stephens's intent "to do some murder shit"—a proposition that is not at all self-evident from the actual phrasing of Stephens's statement, but when considered in the context of Godwin's allegations, the threat to commit murder, at a minimum, constitutes a "specified offense." However, there are no factual allegations, or even legal conclusions for that matter, that the civilian population had a reasonable expectation that Stephens intended to commit murder before Stephens committed the heinous act….

There are no allegations that Stephens had a criminal history known to the public, that he was a known terrorist who committed terrorist acts in the past, that any particular civilian in the Cleveland area even saw the post before the murder occurred, or that any person reasonably believed Stephens would imminently commit murder, nor is there any other factual allegation upon which it could be concluded that the message could reasonably cause the public to fear the imminent commission of a "specified offense." …

Judge Patricia Ann Blackmon concurred with a separate opinion:

I concur with the majority opinion and write separately to express my concern over the lack of developing law governing the relationship social media companies have with their users and the general public; the scope of duty social media companies may, or may not, owe to their users; and whether public safety outweighs a company's bottom line. First, it appears to me that there is a duty…. The law of torts is elastic, and the concept of "duty," as related to liability in torts, expanded as society advanced….

Traditionally, a duty of care did not include a duty to protect third parties. However, looking through the lens of foreseeability, if the defendant has a "special relationship" with either the bad actor or the person in danger, a legal duty may arise…. Public policy and public opinion shape the concept of what constitutes a special relationship in terms of imposing a legal duty….

The Ohio Supreme Court has held that "[s]uch a 'special relation' exists when one takes charge of a person whom he knows or should know is likely to cause bodily harm to others if not controlled." Turning to the case at hand, the extent to which social media companies "take charge" of their users is unknown at this time. However, as the oft-quoted saying goes, "negligence is in the air." See Dipayan Ghosh and Ben Scott, Facebook's New Controversy Shows How Easily Online Political Ads Can Manipulate You, Time Magazine (Mar. 19, 2018) ("The real story is about how personal data from social media is being used by companies to manipulate voters and distort democratic discourse"); Robert Creamer, Massive Facebook influence on public opinion makes its ad policy a serious election threat, USA Today (Jan. 22, 2020) (Facebook "has massive monopoly power to influence public opinion").

In fact, social media is becoming so influential that being a social media influencer is now a profession. Recently, Mark Zuckerberg, who is Facebook's CEO, admitted that "Facebook made a mistake in not removing a militia group's page earlier this week that called for armed civilians to enter Kenosha, Wisconsin, amid violent protests after police shot Jacob Blake …."

As a matter of policy, public safety should be of primary concern, which is why we have tort law. I truly do not see Facebook's issue. It had information of a potential crime. By acting it might have saved a life. Of course, we will never know, but that is why we give individuals their day in court.

I fully agree with the majority opinion that "[t]his case arises from disturbing facts [stemming] from the senseless murder of Robert Godwin, Sr., …." Although the law may not be ready to hold Facebook accountable in the instant case, from a moral point of view, it is hard to ignore "the principle that for every wrong a remedy must exist …." Only when legal and moral duty diverge can courts hear a call for movement and reform.

For more on how the law of negligence has sometimes been read as requiring third parties (on pain of liability) to do things that undermine others' privacy, see my Tort Law vs. Privacy (Colum. L. Rev. 2014).