There is a certain poetic justice in seeing Facebook hoisted on its own petard. But the $52 million preliminary class-action settlement that the company reached several days ago with attorneys for more than 11,000 of its U.S.-based content moderators should elicit a bit of sympathy. The lawsuit is another reminder of the pitfalls of reconfiguring civil liability to highly subjective claims of harm.
It is hardly news that Facebook suppresses news as well as reports it. In an interview last month with George Stephanopoulos on ABC’s Good Morning America, for example, the Menlo Park, Calif.-based company’s multibillionaire CEO, Mark Zuckerberg, admitted that it is company policy to delete comments by users who criticize the current practice of social distancing. Zuckerberg stated, “Certainly, someone saying that social distancing is not effective to stop the spread of coronavirus…we do classify that as harmful misinformation and we take that down immediately.”
About 15,000 Facebook content moderators across America work for third-party contractors. Their job is to decide what’s newsworthy and what isn’t. Their newfound clout is the result of the rise of “woke” political culture and a Facebook hiring binge following the 2016 elections. These contract workers have a tendency to become emotionally triggered when encountering an “offensive” event or comment. Apparently, many among them find the work itself offensive.
In September 2018, a Florida-based content gatekeeper, Selena Scola, sued Facebook in California Superior Court alleging that the company skirted the state Occupational Safety and Health Act’s requirement that employers provide safe workplaces. Her extensive viewings of photos and footage of murders, rapes, suicides and assaults, among other gruesome events, allegedly caused Post-Traumatic Stress Syndrome. As such, she argued, Facebook was liable for damages. The following February, two other content moderators signed on to an amended complaint on similar grounds.
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Thanks to aggressive plaintiff-hunting, the case soon attained class-action status. As so often happens in such civil actions, the defendant settled. Facebook agreed to pay $52 million, effectively admitting that it did not shield 11,250 moderators from the offending images. As part of the settlement, first reported on May 8 and formally announced four days later, each moderator will receive a payment of at least $1,000, and possibly as much as $50,000 if diagnosed with a work-related mental health disorder. Facebook also agreed to roll out changes to its content moderation tools and post information about psychiatric counseling.
A company spokesman stated, “We are grateful to the people who do this important work to make Facebook a safe environment for everyone.” Plaintiffs’ lawyers likewise believe justice has been done. “The harm that can be suffered from this work is real and severe,”said Steve Williams, an attorney for the San Francisco-based Joseph Saveri Firm. “The settlement will provide meaningful relief, and I am so proud to have been part of it.” This is evasion on both counts. Far from being a triumph, the settlement is a defeat for public accountability.
First, it establishes a precedent for similar lawsuits. Media enterprises of all kinds, not to mention publishers, playhouses and film studios, are more likely to be sued on frivolous claims backed by psychiatric evaluations. In the Facebook case, the definition of harm was stretched to a fault. Viewing images on a computer, TV or movie screen is a mighty thin basis for a lawsuit. But as long as there are populist juries with an urge to stick it to the big guys, defendants will have an incentive to settle early.
Second, the settlement represents a capitulation to the notion that employees are incapable of making informed choices on their own – such as finding another job. Nobody forced any of the plaintiffs to do the work required by Facebook. In accepting job offers, they were aware that much of the work would be visually disturbing. That’s life. Imagine a stripper suing her boss claiming she was “hurt” by sexist ogling from male audiences – or Sylvester Stallone suing a producer for cuts and bruises sustained during the making of a Rocky movie. The Facebook suit is on that level. The lead plaintiff, Selena Scola, worked as a content moderator during June 2017-March 2018. Nine months isn’t that long. But if she found her work so traumatizing, why didn’t she quit far sooner?
It would be tempting to bask in schadenfreudeover Facebook’s travails. After all, the company, from Mark Zuckerberg on down, revels in peddling egalitarian Leftism. Coughing up $52 million to its gatekeepers, in a sense, is karma. But that is a side issue. The central issue is the misuse of civil liability for personal gain. There is way too much of that already.
Carl F. Horowitz is senior fellow at National Legal and Policy Center, a Falls Church, Va.-based nonprofit organization dedicated to promoting ethics in American public life.
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