Almost 35 years ago, CBS Records prevailed against a family alleging that Ozzy Osbourne’s music caused the suicide of a teenager. This week, Netflix evoked this now famous affair (McCollum v. CBS) in an attempt to similarly beat a lawsuit on 13 reasons why, whom a grieving family blames for the suicide of their teenage daughter “Bella”. Now is the time to reconsider? Content can now be algorithmically pushed onto entertainment fans, but according to Netflix, that’s no reason to deviate from the First Amendment precedent.
In court documents, Netflix says that from Romeo and Juliet To Circle of Missing Poets, adolescent suicide has often been explored in literature and movies. And the streamer adds that creators should have such rights.
“Creators obliged to protect certain viewers of expressive works depicting suicide would inevitably censor themselves to avoid the threat of liability,” argue Netflix lawyers at Munger Tolles & Olson. “It would dampen vigor and limit the variety of public debate. In such a landscape, a long line of creative works, classics like Anna karenina, Antigone, Awakening, Madame Bovary, and The bell, to countless modern works such as Dear Evan Hansen, Charlie’s world, Wrist cutters: a love story, and The suicide virgins– would be in danger. The First Amendment does not allow such a result.
When 13 reasons why, based on a young adult novel by Jay Asher, released in 2017, it was a mini-sensation. The teen drama that slowly unboxes the suicide of a main character has also gained heat due to the graphic death scene in one of the final episodes of the first season. The series was accused of triggering several actual suicides, and while barely admitting the guilt, the controversial scene was ultimately cut.
Netflix is still in court over what happened, however, and if there’s one thing that’s arguably different about this case than the one involving Ozzy Osbourne’s music decades ago, it’s here. importance of a recommendation algorithm.
“Netflix is not be prosecuted because he created a display of questionable morality that arguably glorifies teenage suicide, ”says a lawsuit filed in federal court in California. “He is not be prosecuted for any broadcast, that is to say the public broadcast of the Show or for the offer of the Show for public consumption … On the contrary, the bases of the claims against Netflix stem from something else: (1) the Netflix’s failure to adequately warn its Show, i.e. the dangerous features of its product and (2) Netflix’s use of its mine of individualized data about its users to specifically target vulnerable children and manipulate them to that they watch content that was deeply harmful to them, despite the terrible warnings about probable and foreseeable risks. consequences for these children.
In a strike motion under California’s anti-SLAPP law, Netflix addresses both theories.
Regarding the allegation that Netflix should have ensured that 13 reasons why wasn’t targeted at “the most vulnerable members of society,” the streamer suggests that there isn’t much of a difference between an algorithm and an editor.
“The system of recommendations, and the display of the proposed titles, it is the word”, specifies a motion of dismissal. “Recommendations are a well-recognized right to exercise ‘editorial control and judgment.’ The complainants allege that the recommendations here are different because they are driven by an algorithm. But the fact that the recommendations “can be produced algorithmically” does not change the analysis. After all, the algorithms themselves were written by human beings, and they “inherently incorporate… the judgments of engineers…”. to display them, and Matt Drudge’s judgments on which stories to tie and how to highlight them.
Read the full brief, which also touches on secondary topics like why Netflix’s recommendation to watch 13 reasons why should not be viewed as an unprotected inducement.
UPDATE: A Netflix spokesperson told us, “Our hearts go out to this family, who suffered terrible loss. But, their advocate’s description of Netflix’s referral system isn’t accurate. Netflix offers shows to our members based solely on what they watch. Netflix does not collect data such as the age or gender of our members when they register, and there is no audience targeting based on personal information or these characteristics.