Last Monday, the U.S. Supreme Court agreed to hear a lawsuit against Google LLC that essentially seeks to establish a uniform legal standard regarding the U.S. Communications Decency Act (CDA): whether Section 230 protects the “recommendations” made by platforms such as YouTube, or whether that protection is limited to traditional editorial functions[1].
This has to do with the origin of the lawsuit and the lack of consistency in case law. Regarding the former, the González family lost their 23-year-old daughter, Nohemi González, in November 2015 during the jihadist attack at the Bataclan concert hall in Paris. In the lawsuit, the González family argues that the automated recommendation algorithms used by YouTube were a necessary vehicle for the radicalization of terrorists who later joined the jihad; that is, YouTube’s (and therefore Google’s) recommendation system had helped ISIS grow and recruit followers, which, in the court’s words:
The application of Article 230 to these recommendations eliminates any civil liability incentives for interactive computer services to avoid recommending such harmful materials, and denies redress to victims who might have been able to prove that such recommendations caused their injuries or the death of their loved ones[2].
Why is this important? Because it would mark—since the CDA took effect in the 1990s—the first precedent for limiting the protection granted to Internet service providers with respect to user-generated content.
Section 230 prohibits courts from accepting lawsuits that seek to hold a service provider liable for performing tasks that traditionally fall to publishers, such as deciding what to publish, remove, postpone, or alter.
Examples of cases dismissed under the CDA include Zeran v. American Online, Reno v. ACLU, and others. Since the CDA took effect, the courts have consistently ruled in favor of granting protection to Internet service providers, citing the protection of freedom of speech and information online, as enshrined in the First Amendment to the U.S. Constitution.
The family questions whether the protection afforded by that provision is limited to the traditional functions of a publisher, or whether it also includes the auto-recommendation features of these algorithm-driven systems.
There could be two solutions to this: either establish that such providers will be liable for the recommendations made by their algorithms when the content of those recommendations is defamatory, abusive, or a threat to public safety; or exclude recommendations made by autonomous algorithms from Section 230, given that the platform itself would be directly suggesting content hosted on its servers to the user, who otherwise would not have accessed it, and would therefore be acknowledging“de facto”that it is aware of the content. In both cases, without the help of the platform’s recommendation system, the user would not have accessed the content, which, in the eyes of the González family, was key to the radicalization of the individuals who carried out the Paris attacks.
While it is difficult to predict a possible outcome, the Supreme Court will likely uphold the current line of case law, including “recommendations” within the exemptions of Section 230. It will argue that it is protecting freedom of speech and the press, as enshrined in the First Amendment, and that the question is not sufficiently defined to hold internet service providers liable for what is published on their platforms or to limit any rights in that manner.
However, it is interesting to note the shift in the interpretation of privacy and liability in the United States, which is moving toward positions closer to the approach taken by the European Union.
Various courts have ruled in favor of establishing liability for content posted by users (Force v. Facebook and Dyroff v. Ultimate Software Group, Inc.), aligning with European positions, where if a platform receives notice that defamatory, harassing, or similar content exists, and fails to remove it, it will be held liable for its inaction, as provided for in Directive 2000/31/EC on Electronic Commerce[3], which distinguishes between different service providers—active and passive—and the liability associated with each role. With the adoption on April 23, 2022, of the proposed Digital Services Regulation[4], which amends the E-Commerce Directive and will take effect on January 1, 2024, the liability of these providers increases, bringing the regulations in line with new technologies.
We will have to wait for the U.S. Supreme Court's ruling to confirm whether there will be a change of course—with the greater security for citizens that this would entail—or whether everything will remain the same, and American citizens will continue to live in the Wild West of the internet.
Author: Jaume Mourisco Ayuso.