Will it be the End of §230 as We Know It?

Section 230 of the Communications Decency Act, 47 U.S.C. §230(c)(1) (hereafter “§230”), protects internet services, like Facebook, Twitter, and the like, from liability based on words used by third parties who use their platforms. The August 23, 2022 Trending Law Blog post discussed how on March 7, 2022, §230 staved off an attack by a private plaintiff in Texas, who challenged Facebook’s §230 protection, when the Supreme Court of the United States declined to decide whether §230 provided immunity from suit to internet platforms “in any case arising from the publication of third-party content, regardless of the platform’s own misconduct.” At that time, Justice Clarence Thomas stated that while he agreed the Texas matter was not appropriate for review by the Supreme Court, he did call for the Court “to address the proper scope of immunity under §230” in a future appropriate case. Apparently that case has arrived.

On October 3, 2022, the Supreme Court granted the petition for certiorari filed in Gonzalez v. Google, an appeal from a decision of the United States Court of Appeals for the Ninth Circuit, which held that §230 protected websites from liability for content posted by a third party. On appeal, the Court will consider whether §230(c)(1) immunizes “interactive computer services when they make targeted recommendations of information provided by another information content provider” or only limits the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?”

The petitioner in Gonzalez is to file its brief on the merits and appendix by November 29, 2022 with the respondent’s brief on the merits and appendix being filed by January 11, 2023. It will be interesting to see if §230, which has been in effect since 1996, remains in effect as it is currently written and interpreted after the Supreme Court considers the Gonzalez appeal.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Rob Nussbaum

Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.

For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.