The Google case in the Supreme Court threatens to overturn the Internet as we know it

An upcoming Supreme Court case may answer one of the internet age’s toughest questions: Should online businesses be held accountable for promoting harmful discourse?

The case, Gonzalez v. Google, could disrupt the modern internet economy, sparing no online business. A ruling against Google will likely leave internet companies from social media platforms to travel websites to online marketplaces scrambling to reconfigure their businesses to avoid costly lawsuits.

Quick Takes: Because Section 230 is the crux of online discourse litigation

The case, to be heard on Feb. 21, tests whether Google’s YouTube can be held liable for automated recommendations of Islamic State terrorist videos. The company is being sued by the family of Nohemi Gonzalez, a 23-year-old US citizen who was among at least 130 people killed in coordinated Islamic State attacks in Paris in November 2015.

Since 1996, the statute at the center of the case, Section 230 of the Communications Decency Act, has protected online platforms from facing lawsuits to harbor toxic contents and allowed businesses to remove posts as they saw fit. The Gonzalez case focuses on whether platforms are protected by the Section 230 shield when their own algorithms enhance toxic material, videos and photos.

The possibility of a serious Section 230 overhaul has scared internet companies across the country. It could translate to less online talk and fewer recommended playlists, podcasts, product reviews, social media posts and more, the companies have warned in court. YouTube says a ruling in favor of the Gonzalez family could force it to filter more content from its video streaming platform. It could also threaten lucrative profits from online advertising.

It is possible that Supreme Court justices may choose to issue a narrow ruling that does not have widespread impact. Eric Schnapper, the Gonzalez family’s lead attorney in the Supreme Court, said he has been trying to defend a position that won’t wreak havoc in the industry.

Supporters of the Gonzalez family say social media companies are exaggerating the impact it could have.

When the tech industry raises these concerns, what it’s basically saying is, “We shouldn’t be treated like everyone else,” said Mary Anne Franks, an attorney with the Cyber ​​Civil Rights Initiative. Universities, publishers, they can all be sued and don’t have Section 230 immunity.

Here’s a look at how different companies might be affected by a ruling in Gonzalez v. Google. All of the companies sided with Google either in their own actions or by joining others:

Meta Platform Inc.

Even if it faces an economic downturn, Metaplatforms Facebook is still one of the most popular social media platforms in the world, with nearly 3 billion monthly active users. To help viewers sift through its vast amount of content, Meta uses a web of algorithms that work to recommend relevant posts.

If the Supreme Court reduces Section 230’s broad protections, it could expose Meta to lawsuits over posts, photos, advertisements, and updates recommended by its algorithms. While the company has thousands of employees who moderate content and more than 90 fact-checking partners, it still faces challenges in checking every post from its billions of users.

Meta collected about $9.82 billion in legal fees in 2021, according to its filings with the Securities and Exchange Commission, and the company expects that number to rise if it faces lawsuits over algorithmic recommendations on its platform.

In order to avoid lawsuits in the first place, Meta would likely significantly reduce the amount of speech allowed on its platforms. An unfavorable ruling could incentivize online services to remove important, provocative and controversial content on issues of public interest, Meta wrote in its Supreme Court brief.

Some activists say it’s time Meta was sued for crimes occurring on its website, including drug sales, cyber stalking, abuse and violent threats. But to avoid legal fees, Meta may choose to reduce the number of people allowed to post on its platforms.

They would let the big brands, celebrities and politicians be on the site because those are the people driving the most activity and least likely to create liability, he said Eric Goldmannlaw professor at Santa Chiara University. Google and Facebook will limit who has access to their tools and it will be a much smaller universe.

Most of Metas’ revenue comes from its online advertising business, which could also be threatened by a large ruling on Gonzalez v. Google. Meta and Alphabet Inc.’s Google, which serves about 50 percent of all digital ads, could be forced to file a wave of lawsuits over the reams of ads they drive to users every day.

Reddit Inc.

Most people calling for Section 230 reform from both political parties focus their criticisms on Google, Facebook and Twitter Inc. But narrowing the statute could have an even greater impact on smaller internet platforms.

Reddit, an online forum that has about 50 million monthly active users, relies on volunteer moderators to decide which posts stay active and which are removed. Community moderators sometimes use Reddit’s self-moderation tools, which allow them to automatically remove posts that violate their rules, such as comments with abusive language and insults.

Reddit also recommends content to its users based on posts they have upvoted in the past.

Section 230 allows smaller platforms that don’t have the litigation budget of Facebook or Google to compete, he said Benjamin Lee, Reddits General Counsel, in an interview. It allows Reddit to have this unique, community-based approach to moderation.

Reddit is no stranger to litigation. The company recently dismissed a lawsuit over a voluntary moderator’s decision to ban someone who referred to a Star Trek character as a soy boy, a pejorative term for effeminate men.

The case was among a dozen content lawsuits that were dismissed last year, largely thanks to Section 230 protections, Lee said. He is concerned that the number would skyrocket if plaintiffs take advantage of narrower legal protections. Each case may have to go through a comprehensive process, which could become costly for the company, he added.

Etsy Inc.

Etsy, an e-commerce company focused on handcrafted items, uses algorithms to help users find products similar to those they’ve bought or searched for in the past. For example, if a person is looking for Converse shoes, Etsy’s algorithm could help direct them to sellers on the platform who specialize in sneakers and similar types of fashion.

Without Section 230, online marketplaces could face lawsuits if their algorithms recommend dangerous products. And Etsy may be discouraged from hosting user reviews because they leave the platform vulnerable to defamation claims.

Etsy relies on sellers’ descriptions of their products. At this time, if the products do not exactly match their descriptions, Etsy has no legal liability. But the Gonzalez case could create legal uncertainty over whether Etsy is legally responsible for every description on its website.

Spotify USA Inc.

Spotify has maintained its place as the largest music streaming service in part thanks to its personalized playlists, which recommend songs and podcasts to users based on their listening behavior.

In a new legal framework, Spotify he could be exposed to lawsuits over the audio he promotes in playlists like Discovery Weekly and Your Daily Podcasts.

Every single way fans interact with streaming audio services is in some way implied by the algorithms they’re using to help organize content and deliver the things you want to hear, he said. Garrett Levinmanaging director of Digital Media Associationwhich counts Spotify as a member next door The Apple company. AND Amazon.com Inc.which both operate music streaming services.

Spotify has already faced controversy over the content of its podcasts. Spotify activists and staff slammed the company last year over its No. 1 podcaster Joe Rogan, which has hosted a number of guests who have spread disinformation about Covid-19. Losing Section 230 protections could mean Spotify would become the target of more lawsuits over controversial content. While most of that speech would probably be protected by the First Amendment, the lawsuits alone could create sticky issues for the company and create huge legal costs.

Startups

One of the most important arguments from Section 230 supporters is that startup founders could be discouraged from setting up online companies under a new legal regime.

The smallest companies I care about are the ones that haven’t been born yet, Goldman said.

The cost of defending even a single lawsuit can easily exceed a startup’s valuation, according to research by Engine, a group that represents startups and receives money from Google, Amazon, Meta and smaller tech companies.

Startup founders typically face a complex web of legal requirements when setting up a new company. And adding the risk of litigation to its recommendation algorithms would only add another layer of uncertainty.

–With the assistance of Greg Stohr.

To contact the author of this story:
Emily Birnbaum in Washington at ebirnbaum3@bloomberg.net

To contact the editor responsible for this story:
Sarah Forden at sforden@bloomberg.net

Jon Morgan

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