• by Wendy Davis , Yesterday

Attorneys representing Myanmar refugees are asking a federal appellate court to reconsider whether they can sue Meta over allegations that it helped fuel the Rohingya genocide by spreading hate speech on Facebook.

Late last month, a three-judge panel of the 9th Circuit Court of Appeals ruled that Meta was protected by Section 230 of the Communications Decency Act, which generally immunizes web companies from liability for content posted by users.

On Tuesday, counsel for the plaintiffs asked the 9th Circuit for a new hearing "en banc" -- meaning by 11 of the circuit's current judges.

"Determining the scope of Section 230’s powerful immunity is an issue of exceptional importance, and this proceeding presents a good vehicle for doing so," counsel argues.

The lawyers argue that the appellate court "unduly expanded" the scope of Section 230, adding that the law should not protect platforms that recommend "dangerous third-party content to susceptible users."

The papers mark the latest development in a lawsuit initially brought by a woman who fled Myanmar after her father was detained by the military. She alleged in a 2021 class-action complaint that Meta's algorithms spread anti-Rohingya sentiment by promoting extremist content, including hate speech about the Rohingya ethnic minority. A second anonymous plaintiff later joined the complaint.

The plaintiffs' suit came around three years after a Facebook-commissioned report concluded the company didn't do enough to prevent people from using the platform to incite violence in Myanmar. The complaint included claims that Facebook introduced a "defective product" -- meaning its social networking service and recommendation algorithms -- into the marketplace, and that the platform was negligent.

U.S. District Court Yvonne Gonzalez Rogers in the Northern District of California dismissed the case, ruling it fell outside a two-year statute of limitations.

The plaintiffs appealed to the 9th Circuit, which rejected their bid to revive the claims.

The appellate panel said in its ruling that Section 230 covers activity related to publishing -- including, in this case, algorithmically promoting posts.

Circuit Judge Ryan Nelson wrote for the panel that the claims against Meta centered on the allegations that it promoted third-party posts because people engaged with them. Meta's alleged use of that type of algorithm is an activity associated with publishing, and therefore protected by Section 230, Nelson wrote.

While the decision was unanimous, the other two judges on the panel indicated they only sided with Meta due to prior 9th Circuit rulings.

Nelson also said in a separate concurrence that he believes Section 230 should not apply when platforms use "modern" recommendation algorithms -- as opposed to the one Facebook allegedly used around 15 years ago in Myanmar.

All three judges said they thought the 9th Circuit should reconsider the scope of Section 230 immunity.

The judges on Tuesday directed Meta to respond by June 2 to the request for a new hearing.