4 days Ago By Guest Author
Explainer Briefly Slides By Sachin Dhawan Section 230 of the U.S. Communications Decency Act [Section 230] furnishes immunity to intermediaries for [most of] the third-party content that they publish.
As a result, since the landmark law came into being in 1996, lawsuits seeking to hold platforms liable for publishing illegal content have been dismissed soon after being filed. Courts have routinely agreed with platforms that due to Section 230, they are not liable for publishing illegal content. Over the years, plaintiffs have sought to bypass the publisher immunity of Section 230 in numerous ways.
They have for instance argued that they are seeking to hold platforms liable not for publishing the illegal content of third parties but for other illegal actions/conduct [such as negligent conduct]. Most of the time, however, courts have concluded that such claims were transparent attempts to evade the protective ambit of Section 230 i.e.
even though plaintiffs claimed they were seeking to hold platforms liable for other wrongful conduct, they were actually seeking to do so for publishing the unlawful content of third parties. So courts have dismissed such claims for being barred by Section 230 immunity. II] A Break from the Past Now however the tide seems to have turned.
In a string of recent decisions involving plaintiffs seeking to bypass Section 230, courts have responded differently. Instead of dismissing such lawsuits as they used to, they are dismissing the Section 230 defence raised by platforms. Publisher immunity, it turns out, is no longer the capacious shield against lawsuits that it once was.
Specifically, three recent cases against the online platform Snap have upended the status quo concerning Section 230. They are: Maynard v. Snap [2018] [ Maynard ], Lemmon v.
Snap [2021] [ Lemmon ] and Neville v. Snap [2024] [ Neville ]. In each of these cases, plaintiffs contended that they sought to hold Snap liable for conduct independent of the activity of publishing third-party content.
Specifically, they wanted to hold Snap liable for conduct as a negligent designer of several features of its mobile application Snapchat, such as the Speed Filter [whereby users could record and post online the speed at which they were travelling in a car/airplane etc.] and automatic message deletion features. Courts agreed with the plaintiffs, holding that their claims against Snap were not seeking to render it liable for publishing third-party content but for negligently creating/designing some of the features carried by Snapchat.
Hence courts dismissed the Section 230 defence raised by Snap and permitted the cases to proceed, to be decided on the merits of the negligence claims. Therefore, plaintiffs will have an opportunity to prove that Snap’s design decisions violated the relevant negligent design laws. They may still fail in this endeavour.
But the point is that before, cases against Snap and other platforms never got this far because of publisher immunity. Now Snap has to navigate a degree of uncertainty and risk that it almost never had to before. III] Why the Shift? Until recently, the settled consensus in case law was that publishing encompassed a large range of platform activities.
But the courts in the Snap cases narrowed the meaning of the term ‘publisher’ of third-party content. Hence activities that used to fall within the ambit of publisher immunity – such as the design decisions taken by Snap – no longer do so. Consequently, Section 230 immunity does not apply to Snap anymore in the context of the negligent design claims made by plaintiffs in the three cases.
As a result, while virtually all platforms take design decisions about the features they offer to users, such decisions will as per the precedent in the Snap cases probably not be eligible for Section 230 immunity. A] Before the Snap Cases: A Broader Understanding of the Term Publisher The term publisher in Section 230 jurisprudence evolved to have two meanings: 1] Editorial Control: As per this understanding, publisher activities incorporate “ actions quintessentially related to a publisher’s role” such as “ decisions relating to the monitoring, screening and deletion of content.” This was the initial understanding of the term publisher that was articulated in the legislative history and text of Section 230 as well as in a raft of rulings interpreting Section 230 such as Zeran v.
America Online [1997]. 2] Design Decisions: Later cases – such as Doe No. 1 v.
Backpage [2016] – expanded the meaning of the term publisher. They held that a platform functioned as a publisher not only when it exercised control over content [by deciding “ whether to publish or to withdraw from publication third-party content”] but also when it made decisions about the design of its website and the features it carried. So being a publisher was not just related to editorial decisions regarding specific pieces of content.
It also included “ decisions about the structure and operation of [a] website – such as decisions about features that are part and parcel of the [site’s] overall design ” [emphasis mine]. If a platform wanted to incorporate a particular feature into the design of its application/website, its decision to do so was, as per this slew of later cases, a publishing decision. Under this paradigm, Snap’s decisions to incorporate the Speed Filter feature or a feature concerning automatic message deletion were decisions that it could not be held liable for, because they were the decisions of a publisher entitled to Section 230 immunity.
In Universal Communication Systems v. Lycos [2007], for example, the court clearly held that the immunity provided by Section 230 extended to not just the “ exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content” but also to its decisions regarding the “‘ construct and operation’ of..
. [it’s] web[site]..
.” The plaintiff in this case contended that the platform Lycos should have designed its message boards differently, in a way that minimized the spread of misinformation. But the court held that such design decisions and choices were the prerogative of Lycos in its capacity as a publisher, for which it enjoyed immunity.
B] The Snap Cases: Preferring A Narrower Understanding of the Term Publisher For the Snap courts, being a publisher means exercising editorial control over individual pieces of content. It means what it did as per the legislative history and text of Section 230 and the initial cases interpreting Section 230. It does not incorporate what the later cases interpreting Section 230 include within the scope of a publisher’s activities i.
e. taking design decisions about the features and tools that a platform will contain. That is why, in Maynard and Lemmon for example, the courts concluded that Snap could be held liable for the decision to offer the Speed Filter feature.
Similarly, that is why in Neville the court stated that Snap could be held liable for the decision to offer features such as automatic message deletion. IV] Conclusion U.S.
courts have consistently held that Section 230 must be “ construed ...
broadly...
” So it is not surprising that, over time, courts expanded the meaning of the term publisher to include (i) a platform’s editorial decisions regarding content, as well as (ii) a platform’s design decisions regarding the various features it will carry. However, three pivotal Snap cases – Maynard , Lemmon and Neville – have rejected the mainstream view. They have interpreted Section 230 narrowly.
As per these cases, Section 230 applies only to editorial decisions by platforms; it does not apply to design decisions. Hence Section 230 publisher immunity no longer protects design decisions. The effect of these cases on the evolution of Section 230 jurisprudence remains to be seen.
Future courts may reject the narrow interpretation of the term publisher provided therein and revert to a more capacious understanding of the scope of a publisher’s activities contained in cases like Lycos . Indeed, several experts have critiqued the Snap cases for breaking with established precedent. But if courts continue down the path paved by these cases, then they will have contributed to a significant shift in the meaning and applicability of Section 230.
Sachin Dhawan is a technology lawyer..
