A case pending before the Supreme Court could change the Internet as we know it: Gonzalez v. Google and the liability of technology platforms | JD Supra

The Supreme Court granted certiorari in González c. Google, a high-stakes case appealed by the Ninth Circuit over the scope of protection Section 230 of the Communications Decency Act gives tech companies full liability for content on their platforms. The case could fundamentally change the modern landscape of the Internet and online discourse.

At issue is a provision of Section 230 which reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another content provider. information”. 47 USC § 230(c)(1). Under this law, websites such as Facebook, Twitter and YouTube and Internet search engines have since 1996 enjoyed broad immunity from liability for claims such as defamation based on their users’ content posted on their platforms. , often winning lawsuits bringing these claims on early motions to dismiss. . The Gonzalez family aims to hold YouTube’s parent company, Google, accountable for the death of their family member, Nohemi Gonzalez, who died in a 2015 Paris terrorist attack. His family’s argument centers on the YouTube algorithm that “recommends” additional videos for a given user. to watch based on what videos the user has already watched. According to Nohemi’s family, YouTube “recommended” the radicalizing videos of the terrorist group ISIS to some viewers and these “recommendations” contributed to Nohemi’s death. The Gonzalez family argues that Section 230(c)(1) only protects a platform’s exercise of traditional editorial functions over user-generated content, such as deciding to edit, withhold, publish or to remove the content. According to Nohemi’s family, this does not extend to “recommending” user-generated content, as this goes beyond traditional editorial functions. They argue that recommendations involve communication by the platform itself, and therefore go beyond “publishing” (ie, providing audiences with content provided by others). To illustrate this point, the petitioners draw an analogy with the publication of a book. If a member of the Court recommended a book, he would not thus become the editor of the book.

Google, on the other hand, argues that an online service must be treated as a publisher within the meaning of Article 230 when it curates and displays third-party content that is likely to be of interest to each user, because linking a third-party video with another does not mean modifying the underlying content. Statement in opposition, p. 21. They reason that “ [a speaker’s] message to interested parties. . . goes to the heart of what it means to be the “publisher” of information. » Identifier.at 3.

Google also argues that, unlike many cases heard by the Supreme Court, there is no division of powers between the circuit appeals courts here. On the contrary, precedents from the Second and Ninth Circuits have concluded that Section 230 protects recommendations targeted by interactive computer services, albeit with divergent reasoning. See, respectively, Force Against Facebook, Inc.934 F.3d 53, 68 (2nd Cir. 2019); Dyroff vs. Ultimate Software Group, Inc., 934 F.3d 1093, 1098 (9th Cir. 2019). In Strength, the Second Circuit held that Facebook’s recommendations remain traditional editorial functions because the dissemination of third-party information inherently connects users to the content, whether it is recommended or not. 934 F.3d 53, 67. In Dyroffthe Ninth Circuit concluded that holding the defendant liable for making such recommendations “would inherently require the court to treat the defendant as the ‘publisher or speaker’ of the content provided by another”, and would therefore run counter to intent of Section 230. 934 F.3d 1093, 1098. The Ninth Circuit decision below in González c. Google then followed Dyroffthe precedent to conclude that targeted recommendations do indeed fall within the scope of Section 230 protection. 2 F.4th 871, 895 (9th Cir. 2021). The family of Nohemi Gonzalez argues that the conflict is that this case, Dry off, and Strength conflict with decisions of other circuit appeals courts holding that Section 230 protections apply only to traditional editorial functions.

The Second and Ninth Circuit judges raised concerns about the need to clarify the scope of the immunity granted by Section 230. Three judges in particular – Katzmann, Berzon and Gould – argued that interpretations of section 230 of the majority are contrary to the text and intent of the law. Strengthat pp. 77-84 (Katzmann, J., partially agreeing and partially dissenting); González2 f.4^e 871, 913-917 (Berzon, J., concordant); ID., 920 (Gould, J., partly concurring and partly dissenting). This division among circuit court judges will now be resolved by the highest court in the land.

Now the Supreme Court, in its first-ever case interpreting Section 230, will consider whether the provision immunizes “interactive computer services” (i.e. websites like YouTube) when making targeted recommendations of content provided by another “information content provider” (i.e. their users). At stake in González is the very way online content is delivered to users. Currently, all major Internet platforms – Facebook, Google, Twitter – use algorithms that recommend content based on users’ online behavior. If the Court were to conclude that interactive computer services can be held responsible for their recommendations, it could fundamentally change the way these platforms work. As Google points out, interactive computing services must make constant choices about what information to display and how in order to help users navigate the amount of data online. Users who have become accustomed to platforms that “curate” content for them may not like having to sift through mountains of random content to find what they want to see if those platforms stop making recommendations altogether. If platforms continue to make recommendations, they could face increased costs in the form of stricter recommendation algorithms and AI filtering of recommended content, as well as an increase in their number. human reviewers in an attempt to further prevent the recommendation of content that may create an increased risk of liability. They will also have to increase their legal expenses to fight cases on the merits that they might have previously dismissed on a motion to dismiss.

But Nohemi’s family responds that recommended content takes control of information received from users and puts it in the hands of internet companies. Petition, p. 32. The stated policy of Section 230 is to “encourage the development of technologies that maximize user control over information received by individuals, families and schools using the Internet and other computing services”. ID. As Nohemi’s family reasons, these algorithms are influential at best — and downright dangerous at worst. Petition, at 7 p.m.

Given the huge potential ramifications for the tech industry, this case is one to watch this term.