Today the Supreme Court granted Certiorari in a case presenting the following question:

Does section 230(c)(1) [of the Communications Decency Act] immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?

The case stems from a 2015 terrorist attack in Paris that killed 129 people, including an American student there. The student’s relatives brought suit against Google, alleging that the company, through YouTube, had violated an anti-terrorism law by recommending to its users terrorist videos urging such attacks. The district court, however, ruled that §230 barred liability.

Section 230 of the Communications Decency Act

Section 230 was enacted in 1996 at the dawn of the internet age, prompted by the need to protect internet companies from being held strictly liable in state law defamation actions because they had permitted other parties to post defamatory materials on the companies’ websites. It provides: “No provider or user of an interactive computer service shall be treated as the publisher of or speaker of information provided by another information content provider.” While Congress’ intent may have been to target defamation liability, section 230’s wording was sufficiently general to invite arguments that it preempted application of a wide range of state and federal statutes. As Justice Thomas commented in 2020, “many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.”

In recent years, however, many judges have expressed concern about the breadth of the immunity conferred by the provision. In the Gonzalez case itself, a dissenting Ninth Circuit opinion observed that “there is a rising chorus of judicial voices cautioning against an overbroad reading of the scope of Section 230 immunity.”

The Rise of Internet Content Recommendation

As the petitioner points out, the question of whether section 230 confers immunity here is of enormous practical significance. In the decades since the enactment of section 230, the types of services being provided on the internet have changed dramatically. Today the income of many large interactive computer services is based on advertising, not subscriptions. Internet firms that rely on advertising have a compelling interest in increasing the amount of time that individual users spend at their websites. The longer a user is on a website, the more advertising the user will be exposed to; that in turn will increase the revenue of the website operator. That financial structure has given rise to the now widespread practice of recommending material to website users, in the hope of inducing them to look at yet more material and thus to remain ever longer on that website. While many of those recommendations are harmless, others suggest that users look at materials inciting dangerous, criminal or self-destructive behavior.

As documented before, past lawsuits seeking to hold social media giants liable for recommending harmful conduct have attempted to steer around section 230 immunity by styling their claims to be over the “design” of the app in question. A ruling by the Supreme Court that section 230 does not shield the recommendation of third-party content would likely expand the volume of such litigation.