Supreme Court to Shape Contours of Online Platform Liability for Third-Party Content

By: Alexa J. Elder

For the first time, the Supreme Court is considering the scope of the “26 words that created the internet.”

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.

Found in Section 230(c)(1) of the Communications Decency Act, these simple words carry great power, providing immunity to tech companies for third-party content posted on their platforms. By shielding tech companies from a torrent of lawsuits, Section 230 has allowed online public expression to flourish and is largely credited for shaping the modern internet.

While it is broadly accepted that an online platform cannot be sued for the substance of the third-party content it hosts, do Section 230’s protections extend to the platform’s algorithmic organization, or recommendation, of third-party content? That is the novel question posed to the Supreme Court in Gonzalez v. Google.

Gonzalez was brought by the family of Nohemi Gonzalez, an American student who was killed in ISIS’s 2015 Paris attack. In the aftermath of that tragedy, Gonzalez’s family filed suit in the District Court of Northern California alleging that Google, through YouTube (which Google owns), had “aided and abetted” an act of international terrorism by “recommending” ISIS videos to users who had watched similar videos. Google’s algorithmic recommendations, Gonzalez argued, facilitated users’ ability to locate ISIS videos and, in turn, assisted the terrorist organization’s efforts to recruit and radicalize new members. 

In response, Google argued, in part, that the lawsuit was barred under Section 230(c)(1). The District Court agreed, and dismissed the action. The Ninth Circuit later affirmed the decision, finding that Section 230 immunity applied. This finding rested, in part, on the fact that Google’s algorithm did not treat ISIS-created content differently, or promote it more aggressively, than other third-party content. In other words, Google’s algorithmic recommendations are employed equally across the board regardless of the subject of the videos.

Now, it is up to the United States Supreme Court to resolve the issue. At oral argument on February 21, 2023, counsel for Gonzalez’s family argued that the plain language of Section 230 only protects tech companies from liability arising out of the substance of third-party content. The statute does not, counsel argued, immunize tech companies from the manner in which they algorithmically organize, display or promote the third-party content. On the other side of the argument, Google’s counsel argued that a website’s algorithmic recommendations fell squarely within the statute.  Any other interpretation, counsel argued, would have a chilling effect on the free and open internet, defeating Section 230’s intended purpose.

The Supreme Court’s interpretation of the statute will be pivotal for Section 230 liability protections. If adopted, a narrow interpretation of Section 230 immunity would deter internet platforms from offering users helpful information through algorithmic recommendations and incentivize greater content moderation in an effort to avoid the flood of lawsuits sure to come. This outcome would dramatically reshape the basic structure of the modern internet. During oral argument, the justices seemed hesitant of this approach, expressing concern about the potential implications of Gonzalez’s narrow interpretation. A formal decision, however, is not expected until this Summer.