October 3, 2023

a legal test that Google’s The Supreme Court was roughly “96% right,” the lawyer said, which could substantially reduce the liability shield the company and other tech platforms have relied on for decades, according to several experts who make the law up to the highest level. advocate keeping

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The so-called “Henderson test” would significantly undermine the power of Section 230 of the Communications Decency Act, several experts said in talks and briefings following oral arguments in the Gonzalez v. Google case. Some of those critical of Google’s concessions also work for groups backed by the company.

Section 230 is legislation that protects tech platforms’ ability to host content from users — such as social media posts, uploaded video and audio files, and comments — without being legally liable for their content. It also allows platforms to moderate their services and remove posts they consider objectionable.

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The law is central to the question to be decided by the Supreme Court in the Gonzalez case, which asks whether the forum prefers Google’s YouTube may be held liable for algorithmically recommending user posts that support or promote terrorism.

In the arguments held on Tuesday, the justices were hesitant to issue the judgment scrapping Article 230.

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But even if they refrain from commenting on that law, they can still issue warnings that change the way it is implemented, or clear the way for changing the law in the future.

What is Henderson test?

Some advocates believe the Supreme Court could endorse the Henderson test as a way to dilute Section 230. Ironically, Google’s own lawyers may have given the court more confidence to support this trial, if it chooses to do so.

Henderson test came from November ruling Henderson v. by the Fourth Circuit Court of Appeals in The Source for Public Data. The plaintiffs in that case sued a group of companies that collect public information about individuals, such as criminal records, voting records and driving information, then put it into a database that they sell to third parties. . Plaintiffs alleged that the companies violated the Fair Credit Reporting Act by failing to maintain accurate information and providing false information to potential employers.

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A lower court ruled that section 230 barred the claims, but an appeals court overturned that decision.

The appeals court wrote that in order to invoke section 230 protections, “we require that liability be attached to the defendant because of some inappropriate material within his publication.”

In this case, it wasn’t the content itself that was at fault, but how the company chose to present it.

The court also ruled that Public Data was responsible for the content as it decided how to present it, even if the information was taken from other sources. The court said it was plausible that some of the information Public Data sent to one of plaintiff’s potential employers “was inaccurate because it omitted or summarized information in a way that made it misleading.” In other words, once the information pulled by Public Data has been transformed, it becomes an information content provider.

Should the Supreme Court uphold Henderson’s ruling, it would effectively “remove Section 230,” said Jess Mears, legal advocacy attorney for the Chamber of Progress, a center-left industry group that counts Google among its supporters. goes. Mears said this is because the primary benefit of Section 230 is to help quickly dismiss cases against platforms that are focused on user posts.

“It’s a really dangerous test because, again, it encourages plaintiffs to state their claims in ways that say, well, we’re not talking about how inappropriate the material is, Mears said. “We’re talking about the way in which the service puts together that content or compiles that content.”

Professor Eric Goldman of the Santa Clara University School of Law wrote about his blog Henderson would be a “disastrous decision” if adopted by Scotus.

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“It was shocking to me to see Google endorsing Henderson’s opinion, because it is a dramatic narrowing of Section 230,” Goldman said at a virtual press conference hosted by the Chamber of Progress after the arguments. “And to the extent that the Supreme Court takes that bait and says, ‘Henderson’s good for Google, it’s good for us,’ we will actually see a dramatic narrowing of Section 230 where plaintiffs are allowed to bring cases.” There will be many other opportunities for damages that are based on third-party material. They will only say that they are based on something other than the harm that was in the third-party material itself.”

Google pointed to parts of it Short Joe discusses the Henderson test in the Gonzalez case. In essence, Google seeks to differentiate the functions of a search engine, social media site, or chat room by displaying snippets of third-party information from a credit-reporting website, such as the issue in Henderson.

In the case of chatrooms, Google says that although “the operator supplies the organization and layout, the underlying posts are still third-party content,” which means it would be covered by Section 230.

“In contrast, where a credit-reporting website fails to provide users with its own required description of consumer rights, section 230(c)(1) does not bar liability,” Google wrote. “Even if the website also publishes third party content, the failure to summarize consumer rights and provide that information to customers is the fault of the website alone.”

Google also said that 230 would not apply to a website that “requires users to express allegedly illegal preferences,” such as would violate housing law. This is because “by contributing materially [the content’s] Illegality,’ the website appropriates that content and bears responsibility for it,” Google said in the 2008 Fair Housing Council of San Fernando Valley v. Roommates.

Concern over Google’s concession

Section 230 experts digesting Supreme Court arguments were puzzled by Google’s lawyer’s decision to support Henderson so strongly. In trying to make sense of this, many suggested that this may have been a strategic decision to try to show the justice that Section 230 is not an unlimited free pass to tech platforms.

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But in doing so, many also felt Google had gone too far.

Kathy Gelis, who represented Amici in a brief submitted in the case, said at a Chamber of Progress briefing that Google’s counsel will likely discuss where section 230 does and does not apply, but “it is widely supported.” By giving, it backed up more than we bargained for, and of course the emcee would have signed on for it.”

Corbin Barthold, Internet Policy Advisor google supported TechFreedom said in a separate press conference that the idea Google was trying to convey in order to support Henderson was not bad in itself. He said it sounds like they’re trying to argue that even if you use the definition of publication like Henderson’s, organizing information is inherent to what platforms do because “there’s no such thing as brute communication of information.” Not there.”

But in making that argument, Barthold said, Google’s counsel has “taken fate hostage.”

“Because if the court doesn’t buy Google’s argument that there really isn’t a distinction here, it could go in a bad direction,” he said.

Myers speculates that Google may have viewed the Henderson case as a relatively safe one to cite, since it involved an alleged violation of the Fair Credit Reporting Act, rather than the user’s social media posts in question.

“Perhaps Google’s lawyers were looking for a way to show the court that there are limits to Section 230 immunity,” Myers said. “But I think that in doing so, it invites some very problematic readings into the Section 230 immunity test, which could have very irreparable consequences for future Internet law litigation.”

Watch: Why the Supreme Court’s Section 230 case could reshape the internet