Supreme Court To Consider whether Google Can Be Held Liable For Content Recommendations

Supreme Court To Consider whether Google Can Be Held Liable For Content Recommendations

On November 13, 2015, the Islamic State terrorist group carried out a wave of terrorist attacks in the city of Paris, killing 130 people. Among the dead was Nohemi Gonzalez, a US citizen studying abroad in France. Members of Gonzalez’s family sued Google, the parent company of YouTube, under the federal Anti-Terrorism statute.

The Anti-Terrorism Act establishes a cause of action for US nationals injured by an act of terrorism committed by a designated foreign terrorist group. The act allows the injured individual to sue anyone who “aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”[1]

The Gonzalez family argued that Google knowingly permitted ISIS to post videos on YouTube which incited violence and recruited supporters to carry out attacks, and even recommended ISIS videos to users. They argue that by recommending ISIS videos to users, Google assists ISIS in spreading its message and thus provides material support to ISIS and that Google’s services have played a uniquely essential role in the development of ISIS’s image, its success in recruiting members from around the world, and its ability to carry out attacks.

Even though the video recommendations were determined by a computer algorithm, the plaintiff alleged that Google was aware that YouTube services were assisting ISIS. As such, Google’s provision of YouTube services to ISIS, including the recommendation algorithm, constituted knowing assistance of a designated terrorist organization.[2]

However, the District Court not the Northern District of California did not reach the merits of the case on the initial case filing. Instead, the court granted Google’s motion to dismiss on grounds that the plaintiff’s lawsuit was barred by Section 230 of Title 47 of the United States Code, enacted into law in 1996. That section protects an “interactive computer service” from civil liability for content on its platform contributed by a third-party.

The impetus for the law was a 1995 New York court’s ruling that an internet provider was liable for defamation for hosting defamatory material contributed by a third party on an online bulletin board.  The court distinguished between a distributor, such as a bookstore or a library, and a publisher, like a newspaper. A distributor is a passive conduit, and so is not liable for the content it distributes. However, since a publisher exercises editorial control over the content it publishes, it is subject to liability for the content it publishes, even if the content was provided by a third party.

The New York court held that the online platform exercised editorial control over the bulletin board by enforcing its content guidelines and by screening offensive language. Therefore, the provider was a publisher rather than a distributor, and could be held liable for the defamatory material posted by a third-party.[3]

To counteract that type of lawsuit, Section 230 specified 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.”[4]

It further immunized interactive computer service providers from liability based on steps it takes to restrict access material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”[5]

In other words, interactive computer services can edit user-generated content for these things without opening themselves to liability as a publisher. It’s still a “distributor” if it reserves the right to censor objectionable content. The rationale for the regulation was that absent such immunity, online platforms hosting third-party content would refrain completely from removing obscene or objectionable content so as not to assume responsibility as a publisher.[6]

Alternatively, fear of liability would lead these platforms to engage in excessive censorship over content, which would run contrary to the goal of promoting the free exchange of ideas on the internet.[7]

The courts have interpreted Section 230’s protection broadly. It has been understood as establishing a categorical rule that online platforms are not liable for third-party content, except for those areas specified by statute, such as intellectual property violations and child pornography. For this reason, Section 230 has been referred to as the “The Twenty-Six Words that Created the Internet.”[8]

This nearly unlimited power to decide what content to remove and what content to leave on a platform, without fear of liability, has enabled extraordinary growth of third-party content platforms, especially social media.[9]

In our Gonzalez case, the District Court for the Northern District of California employed this broad interpretation of immunity under Section 230 and held that the claims against Google were barred by Section 230.[10]

The Ninth Circuit Court of Appeals upheld the ruling, reasoning that YouTube provides a neutral platform similar to a search engine. The Court noted that the algorithm recommends video based on a user input, such as user watch history, and did not promote the ISIS videos in particular, nor did it treat ISIS content differently from other third-party content. As such, the recommendation algorithm was covered under Section 230.

However, a notable concurring opinion in the Ninth Circuit case argued that the protections under Section 230 extend only to “traditional activities of publication and distribution - such as deciding whether to publish, withdraw, or alter content—and does not include activities that promote or recommend content or connect content users to each other.”[11] 

According to the concurrence, algorithms such as YouTube’s, which target specific users with recommendations of content, are more analogous to the actions of a direct marketer, matchmaker or recruiter than to those of a publisher.[12] This opinion argued that recommendations and promotions are communications from the website falls outside the publishing paradigm that Congress sought to immunize for internet platforms.

On the basis of this reasoning, Gonzalez petitioned the Supreme Court to hear its appeal. Gonzales also highlighted a statement by Supreme Court Justice Clarence Thomas in different case, in which he noted that the Supreme Court has never taken a case involving the interpretation of Section 230, despite the fact that “many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.”[13]

On October 3, 2022, the Supreme Court granted the writ of certiorari, and will for the first time hear a case on the proper interpretation of Section 230. In granting the writ, the Court stated the question presented as:

Does section 230(c)(1) immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?

As such, the Court will directly address whether the protections of 230 go beyond “traditional editorial functions” such as content moderation. The Court will determine whether section 230 provides immunity for targeted recommendation functions employed by internet platforms.

This case goes to the heart of the modern social media landscape, in which algorithms and other automated technology determine the content that users have access to and which ads are displayed.[14]

The potential for this case to limit the currently available protections for online platforms could have a major impact on the online ecosystem. Proponents of a broad interpretation see Section 230 as a bulwark against censorship, necessary for expansive free expression on the Internet.  A decision that online platforms can be held legally accountable for content promotion could lead the platforms to restrict the type of content recommended or promoted to users.[15]

A ruling that algorithm-based promotion is not covered under Section 230 can open up broad avenues of liability. Theoretically, internet search engines, which operate through algorithms that prioritize certain content over others based on user input, could face liability for defamatory material posted on the internet by others if a user arrives at the content through the search engine.[16]

Critics of the expansive interpretation of Section 230 note that the statute was drafted in 1996, before the rise of the user-input based sophisticated algorithms. They argue that the broad 230 immunity courts have granted goes well beyond what the law was intended to accomplish, and that social science research has demonstrated that the use of these algorithms by online platforms has been harmful to society.[17]

In effect, these critics argue, limiting the scope of Section 230 protections would end the blanket immunity currently enjoyed by huge tech companies, whose business models depend on increasing user engagement, including by amplifying extreme and violent content.[18] If the tech companies could be held accountable, they would be compelled to develop technology to better police the content they host on their sites.[19]

Should the Supreme Court limit the broad Section 230 immunity, it could open the way to a wave of litigation to determine the legal boundaries of any new standard put in place by the Court.[20]

Likewise, the political pressure on Congress to enact new legislation clarifying the protections for online platforms will likely grow. Democrats and Republicans have in the past introduced bills creating greater accountability for internet platforms.[21] Now, the tech industry is preparing to lobby Congress to respond to a Supreme Court decision that limits 230 protections with a new law with a clearer statement of broad protections for online platforms hosting third-party content.[22]

For now, the decision of the Supreme Court to hear the appeal has led Court watchers and industry analysts to warn that this case has the potential to “radically reshape the internet.”[23]