The Three-Body Problem: Platform Litigation and Absent Parties

The article from Lawfare, written by Daphne Keller, addresses the complexities in platform liability cases, specifically the issue of absent parties in litigation involving online speech. This is referred to as the “three-body problem” of platform litigation, drawing an analogy to a complex issue in physics where no general rule can predict the interactions of three orbiting bodies. In platform litigation, the three competing interests are: people who want to speak, those harmed by speech, and the platforms themselves.

The article discusses how typical litigation usually involves only two parties—often either “Person Harmed v. Platform” or “Speaker v. Platform”—leaving out a third group whose interests are directly affected by the outcomes of these cases. For instance, in cases like Gonzalez v. Google and Twitter v. Taamneh, the absent parties include readers and speakers whose rights to access or disseminate information could be curtailed by court rulings.

Keller explores how this absence affects the rulings and broader legal landscapes, such as the imposition of overly cautious content moderation policies by platforms seeking to avoid legal liabilities. The article argues that significant court rulings, such as those involving Section 230 immunity, not only impact the immediate parties but also set precedents that affect how platforms manage content, which can stifle lawful speech and affect future litigations.

The discussion also touches on how current legislation like the DMCA and proposed laws like the DSA in the EU attempt to address these issues by delineating responsibilities and protections more clearly, though challenges remain in balancing competing interests without explicit representation in court. Ultimately, Keller emphasizes the need for courts and legislators to be more mindful of the absent interests in these disputes to ensure a more equitable consideration of all affected parties.