No section 230 case has created platform liability – they’re hearing cases but deciding on other grounds

As litigation around the country against tech companies and social media platforms continue to develop, questions remain around Section 230 of the Communications Decency Act and the limited federal immunity it provides to these companies.

Recent lawsuits against social media sites like TikTok, Meta, and Snapchat, and circuit court considerations of Section 230, has brought the statute to the forefront. However, the scope and reach the statute has in granting immunity to online computer services and publishers regarding user-generated, third-party content remains unclear.

Alan Rozenshtein, an associate law professor at the University of Minnesota contributes part of the ongoing uncertainty and the increase in suits against various social platforms to the Supreme Court’s 2023 decision in Gonzalez v. Google, where the court was expected to address Section 230 and its meaning, but declined to do so.

According to Rozenshtein, the court’s decision to not address the statute signals “that this question of what does Section 230 actually mean, is much more unsettled then I think has long been assumed.”

“It was really striking that the Supreme Court didn’t say anything about Section 230, despite taking the case specifically to do that. It doesn’t mean that the Supreme Court, when it finally does answer the question, is necessarily going to limit Section 230, but I do think that it is a signal that this is much more of an open game than has previously been assumed,” Rozenshtein said. “And so, it’s a signal to judges, and it’s a signal therefore to litigants as well, that you might as well just start bringing these cases. You might win.”

Some courts have shown an increased willingness to consider cases against these social media companies.

One such court is the U.S. Court of Appeals for the Third Circuit, which held oral arguments at the beginning of the year considering whether TikTok’s personalized algorithm is considered first-party speech not immune from civil liability by Section 230.

Further, the U.S. Court of Appeals for the Ninth Circuit has taken up an appeal by Apple, Google, and Meta to overturn a 2022 decision that found Section 230 didn’t protect them from all claims in lawsuits alleging their casino-style apps violated state gambling laws.

However, questions remain regarding the potential impact of these circuit court rulings on the statute and future litigation.

James Grimmelmann, a professor of digital and information Law at Cornell Law, found potential impacts were hard to narrow down.

“It’s very hard to say. The reason is that if you look at the Supreme Court’s cases last term, in [Twitter v.] Taamneh and Gonzalez…it actually becomes clear that there’s a tough interaction between Section 230 and substantive law,” Grimmelmann said, noting the pair of cases were predicted to resolve the first party, third party question for algorithmic speech on platforms, but the justices ultimately decided the case based on substantive law.

Further, Grimmelmann said that “if 230 doesn’t apply to protect algorithmic decisions and the For You Page, and the order in which videos are shown, it’s not at all clear which causes of action survive that.”

“I don’t know that there are many common law claims in these lawsuits that get through there. I mean, you might have some based upon privacy law, because those are really about the retention and use of user data, and you might have some about addition as such, but even that starts to look like that is a subject for state regulation, and something that can simply be brought under common law,” Grimmelmann said.

Rozenshtein noted that justices expressed confusion regarding the meaning of Section 230 during oral arguments in Gonzalez, finding this reaction from the Supreme Court highlights the complexity of the issue.

“I think reading between the lines, it was a really strong signal that the court thinks this is a very hard problem,” Rozenshtein said. “If the court thinks this is a very hard problem, then clearly Section 230 isn’t as straightforward as we’ve all been assuming it’s been for almost 30 years now.”