Social media giants could, in some instances, have responsibility for user content, effectively undermining existing federal law that shields companies from liability.

At the US Supreme Court on Wednesday, lawyers from the Department of Justice (DOJ) argued that social media giants could, in some instances, have responsibility for user content, effectively undermining existing federal law that shields companies from liability. 

DOJ lawyers argued the point in a high profile lawsuit filed by the family of Nohemi Gonzalez, a victim of a 2015 terrorist attack in Paris. Gonzalez was killed in a Paris bistro when militants claiming extreme Islamist ideology opened fire. Gonzalez was one of 129 people killed. The family argued that Google was in part liable for Gonzalez’ death because YouTube (a part of Alphabet Inc) recommended videos by the Islamic State group to some users through its algorithm. The type of videos recommended incited violence and aimed to recruit followers to “bring slaughter to France” and “fill the streets of Paris with dead bodies.”

Gonzalez’ family brought a case against Google, using the Antiterrorism Act. They intend to prove that YouTube provided material support to ISIS, resulting in Gonzalez’s death. The case is being held at the Supreme Court after the San Francisco-based 9th US Circuit Court of Appeals sided with Google, ruling they were protected from such claims because of Section 230 of the Communications Decency Act (CDA) of 1996.

Section 230 holds 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.” Online intermediaries such as Google that host or republish speech are therefore protected against a range of laws, including anti-terrorism laws, that may otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries not only include regular Internet Service providers (ISP), but also a range of "interactive computer service providers," including essentially any online service that publishes third-party content. Google claimed protection as an ISP. Though there are certain exceptions for specific criminal and intellectual property based claims, Section 230 allows a broad protection that many argue is a “get out of jail free card” for tech companies or ISPs like Google.

Section 230 is politically contentious and has faced criticism across the spectrum; US Democrats arguing it gives social media/tech companies a pass for spreading hate speech or misinformation, and Republicans arguing it allows censorship of right-wing voices. In the Gonzalez case, the Biden administration did not argue that Google should be held liable and instead supported most of Section 230’s protections. However, the DOJ lawyers said that algorithms used by YouTube and other providers should be subject to a different kind of scrutiny, and called for the Supreme Court to return to the case for further review. 

The CDA 1996 was created during the emergence of internet service providers, mainly to protect them from defamation lawsuits. An opinion piece for Bloomberg Law argues:

“For nearly three decades, the tech industry has expertly dodged responsibility for harms their platforms have caused. Unlike any other industry, they breach human rights with no threat of accountability. In recent years, bad actors have used the largest social media companies to influence the progression of many global harms—for example, the genocide in Myanmar, election corruption, eating disorders, and online child sexual exploitation. Yet not a single social media, search engine, or online retailer has ever stood trial before our courts for injuries they’ve caused and frequently profited from.”

Given the extreme difference between the time of the CDA’s inception and the current power of tech giants in 2022, the law is due for a refresh as recommended by the DOJ. Early application of Section 230 occurred when tech companies did not have the capability and reach that they do now. Consequently, the precedent from earlier cases has allowed “even the most seemingly meritorious cases where people are catastrophically injured or killed have been thrown out of court.” Without legal liability or the pressure of litigation, tech corporations have little incentive to amend safety breaches or regulate the content on their platforms.

By hearing Gonzalez’ case, the Supreme Court is indicating that it is time to take another look at the laws surrounding tech/corporate responsibility. Justice Clarence Thomas has voiced his disdain for the use of Section 230. In Malwarebytes v. Enigma 2021, Justice Thomas listed cases he felt were wrongly dismissed by lower court judges because of Section 230. He illustrated the point with a product liability case where the dating platform Grindr lacked basic safety features to stop a known malicious user from impersonating profiles and other dangerous conduct, and a case where Snap added a feature that encourage reckless driving, resulting in the death of three boys. Whether the Supreme Court will bring forth a new precedent that holds corporations to some degree of responsibility is hard to predict. It is important to note that the court is not being asked to determine Google’s actual liability, but whether or not Google could be liable at all.

What may be easier to predict is a hostile reaction from tech corporations, given they are historically opposed to regulation, accountability or any diminishing of their power. Facebook has recently warned that it could ban news in the US if Congress passes a bill that would require the platform to negotiate with and compensate publishers for their content. The Journalism Competition and Preservation Act (JCPA), introduced last year with bipartisan support, would allow publishers to negotiate with platforms like Facebook and Google over the distribution of their content. The JCPA aims to give news publishers more leverage against Big Tech and could require such companies to pay for including news on their platform.

Facebook has fought against this in the past in other countries, pulling news from the platform in Australia last year over similar legislation and even took down pages belonging to government agencies. News was later resorted when the bill in Australia was amended to give publishers and platforms two months to strike a deal or be forced into arbitration. Facebook threatened similar action in response to Canada’s Online News Act which would require the platform to pay for sharing news.

Andy Stone, Meta’s head of policy communications, took to Twitter to speak on the issue, tweeting a statement. He wrote:

“If Congress passes an ill-considered journalism bill as part of national security legislation, we will be forced to consider removing news from our platform altogether rather than submit to government-mandated negotiations that unfairly disregard any value we provide to news outlets through increased traffic and subscription. The Journalism Competition and Preservation Act fails to recognize the key fact: publishers and broadcasters put their content on our platform themselves because it benefits their bottom line — not the other way around.”

The Senate Judiciary Committee passed the JCPA in September by a 15-7 vote, but it is yet to pass through the full Senate. Facebook is not the only advocate against the bill; 26 organisations wrote  a letter to lawmakers to voice their opposition to it. The “Group Letter to Congressional Leadership Against JCPA’s NDAA Inclusion” can be viewed here.

Tech share prices as of today (USD):

NASDAQ

• Alphabet Inc: 95.15, -2.16 (-2.22%)

• Meta: 113.93, -0.19 (-0.17%)

• Apple: 140.94, -1.97 (-1.38%)

• Amazon: 88.46, +0.21 (+0.24%)

• Tesla: 174.04, -5.78 (-3.21%)

• Netflix: 308.42, +2.86 (+0.94%)

NYSE

• Snap: 9.30, -0.12 (-1.27%)

• Uber: 26.40, -0.52 (-1.93%)

(Sources: Reuters, The Verge, Bloomberg Law, Electronic Frontier Foundation, LexisNexis, Yahoo Finance)