Further Challenges to Section 230 Reach the US Supreme Court
Under current US legislation, online media platforms such as YouTube, Twitter, and Instagram enjoy immunity from the laws that govern other publishers under Section 230 of the Communication Decency Act of 1996. Following the Supreme Court’s preliminary hearings of oral testimonies in two cases, is this set to change?
On the 21st February 2023, the court heard Gonzalez v Google, a case brought by the family of a 23-year-old American student killed in the 2015 ISIS bombing in Paris. The family seeks to have Google’s immunity under Section 230 revoked. They are arguing that Google played a part in the tragic death by hosting ISIS recruitment videos. On the 22nd February 2023, evidence was given in Taamneh v Twitter - a similar case in response to a 2017 bombing in Istanbul.
What is the significance of Section 230?
Section 230 grants immunity from editorial publications laws to online platforms which host publications made by the public. This means that if a slanderous video was posted on YouTube, Google could not be charged with slander in court. Only the person uploading the video would be held liable. In contrast, online editorial publishers such as a newspaper would face litigation as a company. The liability would not be limited to the individual who created the defamatory piece.
Section 230 was created in 1996. Many of the biggest social media platforms modelled their businesses under the assumption that they will not be treated as editorial publishers by hosting content. This is in spite of the fact that platforms such as Facebook and TikTok take ownership of the videos and photos published on their websites under their Terms of Service.
Nonetheless, the immunity has meant that sites have not considered functioning in a manner which would allow them to check every publication for compliance. This would require considerable restructuring. As of June 2022, 500 hours-worth of video content were uploaded to YouTube every minute.
The Discussion in Court
During the recent testimonies, Google focussed heavily on its capabilities. It pointed out the difficulties of moderating all of the content uploaded to its websites. Other companies, including Microsoft, Meta and Reddit, have all filed briefs in defence of Google’s position.
Importantly, Google uses algorithms to push and favour certain content. The lawyers of the Gonzalez family argued that that these algorithms led to the radicalisation of their daughter’s killer and the practice makes Google an editorial body, depriving it of the Section 230 protection.
The Supreme Court judges are mostly focusing on assessing whether Section 230 distinguishes between amplifying and simply hosting information. However, they seem hesitant to rule on the matter due to their limited expertise, with Judge Elena Kagan admitting they form a “a court… (not) the nine greatest experts on the internet”. This suggests that the Supreme Court may prefer to leave radical amendments to the lawmakers.
So far, the lower courts have ruled in favour of online platforms maintaining their immunity. This includes previous lawsuit against companies such as Twitter.
Nonetheless, to prevent revisiting this argument in court, online platforms may have to change the way in which they moderate their content. Moreover, the increased presence of children online is likely to raise further concerns amongst the general public. The lawmakers may be more inclined to respond and look looking into whether these platforms are safe with their existing freedoms in place.
Conclusion
So far, the tentative remarks of the Supreme Court suggest that it will uphold Google’s immunity. More evidence will be presented in the coming months.
By Samuel Axford