You read that correctly - under certain circumstances, the victims of terrorism may be vulnerable to tort liability.
In the face of threats to bomb U.S. theaters by cyberterrorists possibly connected with the North Korean government, Sony Pictures has announced that it will not be releasing its movie The Interview. The movie, a comedy starring Seth Rogan, James Franco and Lizzie Caplan, was the story of two tabloid journalists recruited by the CIA to kill North Korean dictator Kim Jong Un. It was to have been released on Christmas. The cyberterrorists previously hacked servers belonging to Sony and released a wide array of proprietary documents, intellectual property and private correspondence. An announcement from the hackers read:
We have already promised a Christmas gift to you. This is the beginning of the gift. … Soon all the world will see what an awful movie Sony Pictures Entertainment has made. The world will be full of fear. Remember the 11th of September 2001. We recommend you to keep yourself distant from the places at that time. (If your house is nearby, you’d better leave.) Whatever comes in the coming days is called by the greed of Sony Pictures Entertainment. All the world will denounce the SONY. [sic]
Reviewers who have seen the film have been somewhat less than effusive in their commentary (the most positive comment is that it is "giddily purile"), but that has ceased to be the point. Both Hollywood and political commentators have condemned the decision as caving to an attack on American freedoms and likely to embolden future terrorism of this type.
Sony's decision came after a number of the most prominent theater companies announced they would not show the film due to the threats against their theaters. Deadline Hollywood reports on an interesting facet of this ongoing incident - the fear that theater companies could be subjected to tort liability in the event they showed the film and an attack, in fact, did occur:
Studios rely upon security experts to vet the seriousness of threats and to help decide whether this is coming from a hacker living in his mother’s basement, or from someone more sinister. That informs decisions that in the past have ranged from bringing in metal detectors, all the way up to pulling a movie from theaters. Those conversations are surely taking place right now, though Sony Pictures has so far been silent today.
If something does happen at theaters showing The Interview, today’s hacker threat means that no one can say they didn’t know or at the very least have a reasonable expectation – the latter being perhaps the pivotal point. While they are different in obvious ways, the 2012 shooting at The Dark Knight Rises proves a contextual parallel to some extent.
Almost since the day of the July 20, 2012 fatal shooting rampage at the Cinemark owned Aurora Century 16 multiplex, the chain has unsuccessfully tried to have legal actions against it by the victims and their families tossed. In this case, the now combined lawsuit cites a lack of adequate security at the venue for contributing to the deaths of their loved ones. Cinemark has long said that it could not have reasonably known that someone like James Holmes would come into the Batman screening heavily armed and kill 12 people and wound 70 more.
However, this August, Judge R. Brooke Jackson refused Cinemark’s request to dismiss the case. While noting that a theatre shooting hadn’t happened in American at that point, the judge said “one might reasonably believe that a mass shooting incident in a theater was likely enough (that is, not just a possibility) to be a foreseeable next step in the history of such acts by deranged individuals.”
Would a sign warning moviegoers of the threats and advising them that they were in the theater at their own risk be sufficient, as one person quoted in the article seems to suggest, to avoid tort liability? The law on this subject remains unclear. And such a sign would likely have little impact on potential tort liability to the theater's employees.