section 230

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On October 3, 2022, the Supreme Court granted cert in Gonzalez v. Google, marking the first time that the Court will consider the scope of Section 230.  As discussed previously on this blog, Section 230 has increasingly taken center stage in debates about censorship and content moderation.  Yet, for the most part, courts have continued to interpret it expansively.  The Court faces a delicate balancing act in considering the scope of immunity granted by Section 230.

The instant case arises from the 2015 terrorist attacks in Paris.  Reynaldo Gonzalez’s daughter, Nohemi Gonzalez, was murdered in the terror attacks by ISIS terrorists.  Her family members brought an action against Google, alleging that Google had aided and abetted ISIS by hosting their videos.  Although simply hosting a video would normally be protected by Section 230, the plaintiffs additionally alleged that YouTube had affirmatively recommended ISIS videos, which helped ISIS recruit new terrorists.  The district court, though, disagreed and dismissed the claim.

The district court’s decision was consistent with existing precedent.  However, after the appeal had been briefed, Judge Katzmann in the Second Circuit wrote a dissent in Force v. Facebook, 934 F.3d 53 (2d Cir. 2019), arguing that recommendation of content should not be protected by Section 230.  The Ninth Circuit subsequently ruled in Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093 (9th Cir. 2019) that recommending content does not remove Section 230 protection.  The panel hearing the Gonzalez appeal therefore found itself in an unusual situation.  Dyroff was Ninth Circuit precedent that governed the decision, which led the panel to uphold the dismissal.  Two judges, though, were troubled by this outcome.  One, Judge Berzon, concurred in the opinion but wrote separately to state that she would have held otherwise if not for Dyroff.  The other, Judge Gould, dissented and argued that Judge Katzmann in the Second Circuit had been correct.   After a petition for en banc rehearing was denied, Gonzalez sought cert on the specific issue of whether Section 230(c)(1) immunizes Internet companies for making targeted recommendations provided by other parties or if the liability is limited to only traditional editorial functions.

Despite there being no circuit split or even intra-circuit split, as every court to have considered the issue has agreed that targeted recommendations are protected by Section 230, the Supreme Court granted cert.…

Continue Reading The Internet Under Siege: The Future of Section 230?

Judge gavel on a computer keyboard

In a little over 18 months, Vimeo has three times vindicated its rights under Section 230 to take down objectionable content.  Vimeo’s victory came first in the Southern District of New York; the decision there was affirmed by the Second Circuit.  In a rare procedural twist, the Second Circuit panel vacated its decision, but issued an opinion upholding Vimeo’s right to take down objectionable content the following week.  The cases illustrate that Section 230’s strength is not solely in subsection (c)(1) but also in (c)(2), which protects a website’s ability to “in good faith . . .  restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”  47 U.S.C. § 230(c)(2).  The trilogy of cases underscores the continued importance of Section 230 to Internet companies, even as it comes under increasing criticism from the public, politicians, and the judiciary. …
Continue Reading Not Once, Not Twice, But Thrice: Vimeo’s Victory in Taking Down Objectionable Content

Recently, an obscure provision of the Communications Act has been thrust into the limelight.  Section 230 is now discussed nearly daily on talk shows and in newspapers, and is gaining increasing criticism from the courts. The result of this attention is that Congress is now working on reforming Section 230, with a bevy of bills proposed that could dramatically affect the free and open Internet, with the consequences difficult to predict.

First, as a bit of background, Section 230 has two main subsections. The first subsection is direct:

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.

47 U.S.C. § 230(c)(1). In the words of the Fourth Circuit, Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).…

Continue Reading Section 230: Major Legislation and Its Future in 2021