United States: CDA Section 230 Immunizes Platform From Liability For Friend And Content Suggestion Algorithms

A recent Second Circuit decision makes clear that the safe harbor that social media and other Internet companies enjoy under Section 230 of the Communications Decency Act broadly applies to a wide variety of claims.

When you think about the Section 230 safe harbor, don't just think defamation or other similar state law claims. Consider whether the claim—be it federal, state, local, or foreign—seeks to hold a party that publishes third-party content on the Internet responsible for publishing the content. If, after stripping it all down, this is the crux of the cause of action, the safe harbor should apply (absent a few statutory exclusions discussed below). The safe harbor should apply even if the party uses its discretion as a publisher in deciding how best to target its audience or to display the information provided by third parties.

In 2016, Facebook was sued by the estates of four U.S. citizens who died in terrorist attacks in Israel and one who narrowly survived but was grievously injured. The plaintiffs claimed that Facebook should be held liable under the federal Anti-Terrorism Act and the Justice Against Sponsors of Terror Act, which provide a private right of action against those who aid and abet acts of international terrorism, conspire in furtherance of acts of terrorism, or provide material support to terrorist groups. The plaintiffs also asserted claims arising under Israeli law.

The plaintiffs carefully drafted their complaint to try to avoid the Section 230 safe harbor. While conceding that Facebook did not create any of the Hamas-sponsored content, the plaintiffs claimed that its friend and content suggestion algorithms drove Hamas content to like-minded individuals who carried out the attacks.

Facebook moved to dismiss the case under Section 230. Section 230 provides that "no provider or users of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In order for the Section 230 safe harbor to apply, the defendant invoking the safe harbor must prove each of the following: (1) it "is a provider . . . of an interactive computer service; (2) the claim is based upon information provided by another information content provider; and (3) the claim would treat the defendant as the publisher or speaker of that information."

A district court sitting in New York granted Facebook's motion to dismiss, finding that all of the plaintiffs' claims, including their federal claims and their Israeli law claims, were subject to the Section 230 safe harbor. The plaintiffs appealed to the Second Circuit.

In a 2-1 decision, the Second Circuit recently sided with Facebook. Two members of the panel agreed with the district court that the use of friend and content suggestion algorithms was like any other editorial conduct that remains immunized under Section 230. They reasoned that websites often make decisions about how prominently to display content on the site or whether to publish it at all. One member of the panel, however, felt this stretched matters too far and that Facebook should not receive the benefits of the safe harbor. That judge would have held that, by employing its friend and content suggestion algorithms, Facebook no longer acted as a mere publisher. The judge reasoned that "creation of social networks goes far beyond the traditional editorial functions that the CDA immunizes." Of course, creating social networks is exactly what all social media sites do.

The plaintiffs sought review by the full Second Circuit, which was denied. Thus, the majority ruling stands.

While those who have a passing familiarity with Section 230 may think that it is limited to state law defamation claims, and other similar state law causes of action, the Second Circuit recognized that Section 230 has been applied to a wide variety of causes of action, including federal housing discrimination, securities fraud, and cyber-squatting.

The Second Circuit recognized that there are specific types of causes of action that Congress excluded from the safe harbor. For instance, the safe harbor does not apply to: federal criminal statutes; laws pertaining to intellectual property; the Electronic Communications Privacy Act or any similar state law; or any state or federal law governing sex trafficking.

The Second Circuit decision makes clear that, unless the claim being asserted falls squarely into one of the few exceptions listed in the Act, the safe harbor applies. And these exceptions have generally been narrowly construed.

For instance, the Anti-Terrorism Act is a criminal statute and part of the criminal code. The Act, however, provides a private right of action. The Second Circuit held that, while the Section 230 safe harbor would not apply to any enforcement of a criminal law, the safe harbor does apply to any civil right of action provided under the criminal code. There are any number of criminal statutes that provide private causes of action. Think RICO or the Computer Fraud and Abuse Act.

Likewise, Section 230 does not apply to intellectual property law claims (think copyright or trademark claims). Although the DMCA provides important protections, social media and other Internet companies may under certain circumstances be held liable for copyrighted material posted to the site by a third party. Nonetheless, with some notable exceptions, courts have generally taken a narrow view as to what qualifies as an intellectual property law. For instance, courts have held that the Section 230 safe harbor applies to claims under the federal Defend Trade Secrets Act. And while the Lanham Act addresses both trademark and unfair competition claims, courts have generally held that only the trademark provisions are exempted from the Section 230 safe harbor protection.

And, while the Second Circuit did not need to reach the issue, citing a lack of federal jurisdiction over the plaintiffs' foreign law claims, the district court held that the plaintiffs' Israeli law claims were subject to the safe harbor as well.

As previously noted in other posts, the Section 230 safe harbor has found itself under pressure from certain courts and Congress seeking to limit its scope. So far, the Section 230 safe harbor has proven resilient. Most federal courts continue to recognize that the safe harbor is broad and, absent some act of Congress, should be broadly applied.

The Second Circuit's recent decision further reinforces that the Section 230 safe harbor immunizes against a wide variety of claims and that no matter how creatively a plaintiff may seek to characterize a claim to avoid the safe harbor, it still protects social media and other Internet companies against liability for publishing third-party content.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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