Supreme Court to clarify internet safe haven provisions | Miller Nash LLP


The US Supreme Court has agreed to hear a case questioning whether the “safe havens” granted to operators of online platforms apply to the calculation that allowed recruiting messages from the ISIS terrorist group to be temporarily available on YouTube, spurring the 2015 ISIS attacks in Paris that caused In the death of a member of the plaintiff’s family.

complaint in Gonzalez v. Google The YouTube process allegedly provides and recommends sites that YouTube has not yet blocked for displaying harmful or illegal content, including specifically ISIS propaganda that is the subject of the complaint.

The case will reportedly mark the first time the Supreme Court has reviewed and considered the increasingly controversial Section 230 of the Communications Decency Act since it deemed most of the CDA’s provisions unconstitutional in the 1997 case. Reno vs. ACLU. The CDA was an attempt to keep the web free of illegal, objectionable, and “indecent” content by, in part, giving ISPs a safe haven from liability for removing or refusing to post third-party content. Although most CDA law was never enforced due to the ACLU decision, Section 230 remains enforceable, primarily based on its reiteration of publishers’ traditional rights to make editorial decisions without fear of legal repercussions.

same year ACLUthe fourth circuit was held in Zeran v. America Online, Inc. That Section 230 protects ISPs from state law demands to publish third-party publications, just as traditional print media publishers were free from responsibility for deciding whether or not to print materials such as reports, advertising, and opinion. in ziranSection 230 protects AOL from liability for defamatory statements posted on its Service by an anonymous subscriber, because defamation is a claim under state law.

In the Gonzalez In the case, the district court dismissed the plaintiffs’ allegations that YouTube and its owner Google LLC violated the Anti-Terrorism Act, on the grounds that Section 230 immunizes online publishers against liability for their own publishing decisions. Ninth District Certainplaintiffs expedited petition asserting that passive algorithms such as the YouTube algorithm are not the same as the traditional decision-making process of content publishers and should not protect YouTube from the consequences of making illegal and harmful content available.

In considering the case, the Supreme Court may focus narrowly on the question of algorithm; Or it could more broadly consider the general application of Section 230. Over the past quarter century, many people and organizations have credited Section 230 with enabling the Internet to grow and thrive. Voices such as these warn that amending the courts’ interpretation of Section 230 could have grave horrific effects on online commerce and communications that the United States and the world are accustomed to.

However, others say a reconsideration of the scope of Section 230 is long overdue. Waiting on the sidelines is the 4th Circuit pending issue hip vs facebook, in which a sloppy photo of Philadelphia news anchor Karen Heep found its way into numerous advertisements that appeared on Facebook and other online platforms, promoting products such as dating services and sexual performance enhancement. In this case, plaintiff Hepp claims that Facebook is responsible for infringing its publicity rights because Section 230 expressly excludes intellectual property claims. Several states, including Pennsylvania, home of Hepp, consider the advertising rights as intellectual property, leading the Fourth District to believe that Facebook is not protected from Hepp’s allegations. Complicating the situation, however, many other countries consider the right of publicity to be a personal right, not an intellectual property right, which is protected only by state laws governing privacy and defamation.

Despite the differences between their claims, Hepp and Gonzalez maintain that under the current interpretation of Section 230, they, like Zeran in 1997, would have no compensation for wrongdoing made against them by companies that control web platforms.

When the court sees Gonzalez And Section 230, the questions are going to be tough and the stakes are enormous.

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