In December 2021, our post Increased Likelihood of US Social Media Regulation discussed the rising momentum to reform Section 230 of the 1996 Communications Decency Act, which is often used to protect social media giants from liability for content posted on their platforms by third parties. Recently, U.S. Supreme Court Justice Clarence Thomas expressed displeasure over the lack of guidance surrounding Section 230’s scope and hinted that reform may be close.
His comments came when the Supreme Court denied a petition for certiorari in Doe v. Facebook, Inc. There, three plaintiffs brought suit against Facebook, alleging Facebook failed to protect them from the dangers of sex trafficking. The plaintiffs asserted claims for negligence, negligent undertaking, gross negligence, and products liability based on Facebook’s failure to adequately warn or protect users from sex trafficking on its platform. Although the Supreme Court of Texas allowed a separate statutory human trafficking claim to survive, it dismissed the remaining claims as inconsistent with Section 230.
The Texas high court discussed how federal and state courts overwhelmingly rule that nearly all claims against internet companies resulting from content published by third parties “effectively treat the defendants as publishers and are barred” under the statute. This broad interpretation favors immunity for social media platforms. Nevertheless, the court noted that a more narrow reading of the statute is plausible, but more guidance is needed on how to construe the provision. The court recognized that “the internet today looks nothing like it did in 1996, when Congress enacted Section 230,” but stressed that it is Congress’ responsibility to reform the statute—not the courts’.
Writ of Certiorari
Justice Thomas echoed the Texas court’s skepticism and criticized the wide-sweeping immunity granted to some of the largest companies in the world. Although he acknowledged that Section 230 does grant platforms immunity from being held strictly liable for third party actions, he did not see how this immunity would translate to protection from the company’s own actions. In this case, Facebook allegedly knew its site was being used to facilitate human trafficking and decided to not take steps so as to not lose company users. This would seemingly be a direct act by the company and not by a third party, thus not falling under the scope of Section 230’s immunity.
In addition, Justice Thomas was skeptical that granting Facebook such immunity is actually what the language of Section 230 demands. The sweeping immunity granted by courts from Section 230 rests on the policy behind the act rather than the actual language of the statute. Importantly, Justice Thomas noted—twice—that if Congress does not step in, the Supreme Court should clarify Section 230’s scope in an appropriate case.
In anticipation of Congress or the Supreme Court speaking on this issue, all internet providers should continue to review their current policies and determine how a possible narrower Section 230 immunity would affect their business.
Special thanks to Ashley Slater for assisting with the drafting of this post.