By Eric M. David
When the U.S. Supreme Court agreed last fall to consider two cases seeking to narrow the scope of the immunity provided to internet companies by Section 230 of the Communications Decency Act (47 U.S.C. § 230), those internet companies — and the lawyers who represent them — were understandably concerned. They breathed a collective sigh of relief in May when the Court, in a pair of unanimous decisions, avoided the Section 230 questions and, as a result, might have strengthened the law’s protections.
Since its enactment in 1996, Section 230 has provided robust immunity to internet companies that published content from third parties, an immunity that helped fuel the explosive growth of the internet over the past 27 years. Specifically, Section 230(c)(1), dubbed “the 26 words that created the internet” by author Jeff Kosseff, provides:
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.
In short, when a website (think Facebook, Twitter, Instagram, YouTube) simply publishes content created by third parties, the website generally cannot be held liable for that user-generated content. Section 230’s immunity allowed internet companies to create websites relying on user-generated content without the fear of crippling tort liability. After all, if Twitter could be held liable for every defamatory tweet someone posted, it would be out of business faster than anyone can type 280 characters.
In recent years, creative lawyers have sought ways to avoid Section 230 and to hold internet companies liable for harm allegedly caused to their clients. Those efforts — for example, product liability claims alleging that the design of the website caused harm — have enjoyed limited success. For the most part, courts have held that if the crux of the claim relates to user-generated content, it is barred by Section 230 unless the website “materially contributed” in some way to the tortious content.
The two cases considered by the court, Twitter Inc. v. Taamneh and Gonzalez v. Google LLC, involved a new twist arising from tragic facts. In Taamneh, the plaintiffs were family members of a person killed in a 2017 attack by the Islamic State group on a nightclub in Turkey. In Gonzalez, the plaintiffs were family members of a person killed in the 2015 IS group attacks in Paris. In both cases, the plaintiffs sued various social media companies under 18 U.S.C. § 2333, which allows U.S. nationals who have been “injured … by reason of an act of international terrorism” to sue in civil court “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”
In both cases, the plaintiffs alleged that the social media company defendants had “aided and abetted” the IS group by allowing the terrorist organization to use their platforms to recruit new terrorists and to raise funds. According to the complaints, the social media companies “knew” that the group was using their platforms to recruit and raise funds, but they did not take steps to stop it. The defendants asserted they were protected by Section 230. In Taamneh, the 9th Circuit Court of Appeals rejected that defense; in Gonzalez, the same court held that the defendants were immune from suit.
After Section 230 became a political football in the 2020 presidential campaign, the Supreme Court’s decision to hear these cases raised a concern that the court was looking for an opportunity to narrow the scope of the law’s immunity. Instead, the court in Taamneh focused almost entirely on the text of 18 U.S.C. § 2333, analyzing whether the complaint plausibly alleged that the social media companies had “aided and abetted” the IS group simply by employing “recommendation algorithms” that enable it to connect with the “broader public, fundraise and radicalize new recruits. And, in the process … profit from the advertisements placed on ISIS’ tweets, posts and videos.”
The Supreme Court held plaintiffs could not allege that the defendants “gave such knowing and substantial assistance to the IS group that they culpably participated” in the terrorist attack. Specifically, the court held these social media websites are no different than cellphones, emails or the internet generally — bad actors might use them in the commission of their crimes, but that does not mean the companies “aided and abetted” the bad actors. A “recommendation algorithm” that is simply part of the “infrastructure” of the website and is not directed specifically at the bad actor (e.g., the IS group) does not create liability for the website. In Gonzalez, the court remanded the case back to the 9th Circuit for reconsideration in light of the principles discussed in Taamneh.
By focusing on 18 U.S.C. § 2333, the court avoided direct consideration of Section 230. (It is not mentioned at all in the Taamneh opinion.) Nonetheless, the court’s requirement of a “concrete nexus” between the defendants’ alleged “assistance” and the bad acts might help inform lower courts as they consider new attempts to hold internet companies liable for harms allegedly created or facilitated by using their website.
Eric David is a partner at Brooks Pierce. He focuses his practice on business litigation, constitutional litigation, and media and communications law.