In a forthcoming article at the Harvard Journal of Law and Technology, three law professors propose a novel, legal tort theory of liability. This liability is referred to as “reckless associations,” and it has the effect of allowing a victim to sue a third-party for assuming a leadership position in an association if a member of the association intentionally caused harm to the victim.
The professors proposed this secondary liability to crack down on social network agitators that have escaped legal punishment for their content, which they allege falls short of conspiracy and/or incitement. This theory’s immediate effect would be to flood the judicial system with lawsuits purporting to hold wrongdoers accountable. The secondary effect would be to pressure social networking platforms to maintain key network surveillance data readily available for plaintiffs’ attorneys.
The obvious flaw in this legal theory is that it attempts to fix a problem that only affects a very small fraction of all social network users. Though these users make up a fraction of the entire network, they were “central and active nodes in a dysfunctional network—one that has actually and foreseeably caused epistemic failure and resulted in conduct that harmed people outside the network” before the platform’s content moderators banned their accounts. For years, the platforms have maintained community standards and other policies to address content that may be illegal or objectionable. These policies exist to deter the types of content being addressed by the tort.
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