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Section 230 Under Attack: Court Decisions Chip Away at Crucial Online Intermediary Protections

· June 28, 2016

Section 230(c)(1) of the Communications Decency Act (CDA) states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230 provides immunity to online service providers and intermediaries for the content created and posted by their users. It was enacted in 1996 in an effort by Congress to promote the development of the Internet and preserve its vibrant, noncompetitive market, stirring digital growth. When enacted, this law gave the Internet room to breathe as it evolved, while continuing to maintain an appropriate balance between the protection of individual rights online and online activity intermediaries have no immunity under Section 230 from federal criminal law, intellectual property law, or communications privacy law.

Section 230 is acclaimed as one of the most important frameworks for internet regulation, yet it has been the subject of great scrutiny over the last 10 years. Most would agree that neither Facebook should be held responsible for each of their 1.65 billion active monthly users’ actions, nor should eBay be liable for the feedback posted by each of their 162 million buyers worldwide who use the platform for economic gain. Section 230 of the CDA is designed to promote market expansion for existing tech leaders, such as Google, Twitter, and Facebook, and also allows sharing economy pioneers such as Uber and Airbnb to prosper. But over the last year, this stalwart statute has been under attack from every angle. The last couple weeks have been especially trying for Section 230 as a myriad of creative claims have attempted to chip away at this foundational tool for protecting freedom of expression and the advancement of the Internet.

  1.   Court order, issued under a default judgment, requires compliance for nonparties

Last week, the California court of appeal ruled that a service provider was responsible for removing defamatory content under a default judgment. A disgruntled client left a poor review of her lawyer on Yelp and actions for defamation and libel were brought against her. The defendant failed to show up to court, and a default judgment was issued awarding damages and injunctive relief against the client. The injunction ordered the consumer review website to remove the review written by the client.

So what happened to Section 230 immunity? This court effectively bypassed any protections granted to the online intermediary, who was not even a party to the case. In very circular statements, the court says that the “removal order does not violate section 230 because it does not impose any liability on Yelp….If an injunction is itself a form of liability, that liability was imposed on [the client], not Yelp. Violating the injunction or the removal order associated with it could potentially trigger a different type of liability which implicates the contempt power of the court….”

Essentially this decision boils down to the court being able to force a service provider, who is not a stated party in the suit, to remove content based on a default judgment — and refusal to comply would result in contempt of court proceedings. This ruling could have major implications for Section 230, civil procedure, and due process issues in the future. It creates a loophole for plaintiffs to leave the service provider unnamed, have defendants be a “no show” in court, and Ta-da!, someone else is required to comply with the court order and the content vanishes. Not only does this pose threats to Section 230, but it also opens the door for a U.S.-based “right to be forgotten.”

  1. Does Section 230 protect social media sites from users who engage in terrorist behavior?

Section 230 also found itself under attack last week when the family of a victim of the Paris terrorist attacks filed suit against Google, Twitter, and Facebook alleging that these social media sites were providing “material support” for terrorism-related behavior. The Gonzalez complaint is not the first instance of extending blame to online intermediaries. In Fields v. Twitter, the widow of a victim of an attack in Jordan alleged that the platform helped ISIS spread extremist propaganda. Twitter filed a motion to dismiss, arguing that the plaintiff had failed to state a claim since Twitter fell within Section 230’s reach. This case will likely be dismissed in favor of Twitter, as the judge presented a preliminary opinion last week that the motion to dismiss should be granted, but indicated that the plaintiffs will likely have an opportunity amend their complaint.

The two main issues in Fields are whether Section 230 protects Twitter from liability, and if not, whether Twitter violated the USA PATRIOT Act by providing “material support.” Social media sites have consistently been classified as platforms for users to create content, where Section 230 immunity is premised on them not being liable for passively displaying that content. A judgment against Twitter could lead the courts to find service providers liable for any terrorist conducting research via search engines or organizing meetings through other platforms. The potential for this trend to emerge would corrode the protections granted by Section 230 of the CDA.

Outside of the Section 230 claims, it would be a poor policy decision to find Twitter liable for supporting terrorist activities based on the expectations set forward in their Terms of Service, which state that the user is responsible for the use of and any content posted to the service.  Having this agreement between the platform and users strengthens the understanding among millions of law-abiding citizens that they are responsible for their conduct on the platform. The judge expressed similar sentiment in recognizing the distance between intermediaries and terrorists’ actions, stating that he fails to see the connection between the use of Twitter and the fatalities in the attack.

The Gonzalez case will most likely not succeed for the same reasons that the current claims in the Fields case will likely not succeed. However, a twist in the Gonzalez complaint is the allegation that at least one of the platforms shares its ad revenue with ISIS. The plaintiff argues that “YouTube earns revenue from these advertisements and shares a portion of the proceeds with ISIS,” thus supporting their recruitment efforts. Section 230 jurisprudence does not differentiate between ads and editorial content, so whether this claim will expose a potential loophole for more aggressive lawyering tactics in the future is yet to be determined.

  1. New sharing economy regulations could jeopardize Section 230’s preemption clause

Last Tuesday, it was announced that city officials around the world have been discussing universal guidelines for regulating the sharing economy. The sharing economy has prompted local governments to coerce new technologies into operating within existing regulatory frameworks. City representatives have begun developing a sets of rules with tentative policy proposals scheduled for the end of the year. However, depending on what these policies entail, they could pose a threat to Section 230’s preemption clause which states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

If the proposed rules require a service provider to interact with content or users, including any screening procedures, it may be inconsistent with the Section 230 provision. For example, amidst Airbnb’s commitment to combat any discrimination on their platform, the company is limited in their responses for fear of drifting away from being a provider towards being a publisher that curates the content, thus exposing them to liability. Or if a local ordinance imposes a fine on platforms for inaccurate or illegal information provided by users, it would undermine Section 230 since it requires platform operators to monitor users’ content.

Overall Section 230’s broad interpretation is meant to provide the Internet and other interactive computer services “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” As noted previously, without the protections provided by the CDA, many businesses and disruptive economies would not exist. These recent cases attacking Section 230 threaten to chill innovation and the rich exchange of resources that service providers have enabled over the past 20 years.

Kacee Taylor is a Legal Fellow at CCIA and a rising 3L at University of San Francisco School of Law. Follow her on Medium (@kaceetaylor) or on Twitter (@k_traine). 

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