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Tuesday, March 09, 2021

Parler v. Amazon Web Services: Defamation & the Promotion of Violence in Social Media

Parler v. Amazon Web Services presents some intriguing issues concerning the role of social media in fomenting violence, the market power of Amazon and its web services to suppress speech businesses, and the continued controversy over who is and who is not a public figure. See Parler v. Amazon, Complaint, CASE #: 21-2-02856-6 SEA (Sup. Ct. Wash., Mar. 2, 2021); Parler v. Amazon Web Services, CASE NO. 2:21-cv-0031-BJR, Order Denying Motion for Preliminary Injunction (W.D. Wash. Jan 21, 2021).

Amazon Web Services indefinitely suspended the social media company Parler from its site a few days after the riots at the U.S. Capitol on January 6, contending that “Parler was used to incite, organize, and coordinate the Janary 6 attack on the U.S. Capitol.”

Shortly after being suspended, Parler sought an injunction against AWS in federal district court in the state of Washington. Parler, which describes itself as a “conservative microblogging alternative and competitor to Twitter” and Facebook, asserted that AWS was using its market power to disable a potential competitor and claimed that AWS had engaged in conspiracy in restraint of trade, breach of contract, and tortious interference with business expectancy. AWS countered that Parler’s inadequate moderation of its site violated AWS’s Acceptable Use Policy, which prohibits “illegal, harmful, or offensive” use or content. AWS also contended that Parler was in breach of its Customer Service Agreement, which justified AWS in suspending Parler. The federal district court denied Parler’s motion, finding that Parler had failed to show a likelihood of success on the merits of its claim. The judge concluded that Parler supplied no evidence of any conspiracy in restraint of trade, and Parler’s breach of its agreement with AWS and the Acceptable Use Policy made Parler’s breach of contract suit unlikely to succeed. Similarly, Parler’s breach also made its tortious interference claim weak. Evaluating the balance of hardships in the case, the court stated: “AWS has convincingly argued that forcing it to host Parler’s users’ violent content would interfere with AWS’s ability to prevent its services from being used to promote—and, as the events of January 6, 2021 have demonstrated, even cause—violence.” The court further held that the public interest did not support granting an injunction forcing AWS to host the incendiary speech that some of Parler’s users engaged in, opining that the riots at the Capitol “was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection.”


Parler was off the internet for more than a month while it tried to find replacement web services. On March 2nd, 2021 Parler filed suit against Amazon Web Services and Amazon.com in state court in Washington. In its complaint, Parler insisted that AWS’s suspension was motivated by a desire to eliminate the threat Parler poses to “surveillance capitalism” because it does not sell user data. The complaint recounts instances of violence-promoting content appearing on Amazon, Twitter and other social media sites, suggesting that AWS’s suspension of Parler with less than 30 hours’ notice was based on concerns other than its content moderation. Further, Parler alleges, implausibly and without support, that AWS directed hackers to Parler’s backup datacenters and began secretly selling Parler’s user data.


Parler brought various claims against AWS, including deceptive trade practices, defamation, breach of contract, breach of fiduciary duty, tortious interference with contract or business expectancy, unfair competition, negligence, and other claims (for a total of fourteen claims). The suit seeks trebled and exemplary damages and attorneys’ fees.
The basis for the defamation claim was an email AWS allegedly leaked to BuzzFeed that stated that AWS was indefinitely suspending Parler because it was unable or unwilling “to remove content that encourages or incites violence against others.” Parler asserts that AWS made this claim, despite being aware that Parler had a history of removing problematic content and was testing a new artificial intelligence system to moderate problematic content. Parler asserts that it is not public figure and its content moderation policies were not a matter of public concern, but even if it were, AWS acted with knowledge or reckless disregard of the falsity of its allegations that Parler had been lax in moderating troubling content. AWS complained that this defamation cost it millions in lost business.


Is Parler a public figure? While it is true that a defendant cannot bootstrap a plaintiff into becoming a public figure by virtue of the defendant’s defamatory allegation, Parler was in the public eye based on its business practices before AWS leaked the email. Indeed, a Washington Post article published the day before the Capitol riots on January 6 stated that “[t]alk of guns and potential violence is rife on . . . the conservative social media site Parler.” Parler suggests that it is no more responsible than other social media for allowing violent content on its site linked to the events of January 6th. If this allegation its true, it would lend credence to Parler’s claim that the blame for the riots has been falsely pinned on its site; however, Parler did not sue the media linking its site to the riots but instead sued AWS. AWS may assert that the leaked email about Parler is technically true: Parler was unable to keep up with moderating violence-promoting content. Moreover, if AWS relied on credible news sources to conclude that Parler was being used to foment violence, it would be hard for Parler to prove that AWS knew or recklessly disregarded the falsity of AWS’s attribution of inadequate moderation to Parler. On a side note, it seems at least as likely that AWS booted Parler for damaging AWS’s own reputation as it does that AWS booted Parler for anti-competitive reasons. Regardless, if this defamation action helps uncover whether Parler’s lax content moderation was more responsible than that of other social media for the riots of January 6, it will be doing a public service.

Posted by Lyrissa Lidsky on March 9, 2021 at 11:50 AM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink

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Posted by: CASINOPENGE | Mar 15, 2021 8:15:14 PM

I haven't contemplated this in depth at all, but how can Parler be maintaining this parallel suit in Washington state court, which seems to be largely duplicative of the federal one? It seems as though one of them—more likely the state case, I guess—ought to be precluded by some kind of abstention and/or res judicata. (On the latter aspect, I also did just peek at the first linked article, which says Parler "rescinded" its original federal suit.)

Relatedly, I am curious whether Amazon has arbitration provisions in the relevant agreements to address disputes like this. If so, why are these cases not being moved to arbitration?

Posted by: hardreaders | Mar 9, 2021 5:37:28 PM

Very interesting, very important post or issue. Worth noting, the issue of conspiracy or alike, alleged by Parler. Parler has argued that Twitter and AWS, have conspired against it. I quote from the district court:

Importantly, Parler has submitted no evidence that AWS and Twitter acted together intentionally—or even at all—in restraint of trade. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 (2007)(“[A]n allegation of parallel conduct and a bare assertion of conspiracy will not suffice.”). In contrast, AWS has submitted the sworn declaration of an AWS executive, explicitly denying the existence of any such agreement:

To my knowledge, AWS and Twitter have never discussed, much less agreed upon, any policy, practice, or act directed at Parler. To the contrary, we have an internal policy never to discuss matters involving one customer with another customer. Nobody in my organization would be authorized to discuss Parler with Twitter without my authorization, knowledge, or involvement. I have not authorized any AWS employee to discuss Parler with Twitter, and I have not been involved personally in any such discussion.

End of quotation:

Also worth noting, that the district judge, agreed, that in business terms, Parler may be finished after such crucial suspension of cloud service. Yet, and even so, wasn't sufficient for issuing preliminary injunction.

Thanks

Posted by: El roam | Mar 9, 2021 1:41:59 PM

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