Page 2: Other exceptions to Section 230

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Meanwhile, judges of the US Court of Appeals for the Ninth Circuit have taken a completely different approach to holding service operators liable for third-party statements despite Section 230. This district includes the states of California and Washington, where the headquarters of numerous IT companies are located. Accordingly, the host providers should be liable for promises to prevent certain postings – even if the operator (or its algorithms) did not select the postings at all.

The starting point is a legal issue decided by the Court of Appeal in 2009 (Barnes v Yahoo). At that time, a woman contacted the head of the PR department with the complaint that her ex-boyfriend was repeatedly creating unauthorized profiles in her name. The PR manager promised that the responsible department would "take care of it"; nevertheless, the ex-boyfriend was able to continue setting up Yahoo profiles in the woman's name. She sued Yahoo and succeeded in having the lawsuit dealt with despite Section 230 because Yahoo had given an enforceable promise.

This year, the judges are taking up the argument they made at the time and expanding it considerably: operators should not only be liable for third-party content if they make a direct promise to remove it, but also if the promise is of a general nature. Two cases have become known in this regard.

Meta could be liable for third-party advertising

In Calise v Meta Platforms, Meta could be liable for advertisements placed on Facebook by Chinese scammers – in violation of Meta's rules. Facebook users who fell for the ads have sued Meta for damages. They allege that Meta deliberately ignored the advertisers' breach of contract in order not to lose the business. In doing so, Meta breached the contract concluded with Facebook users, in which Meta promises to prevent harmful content on Facebook.

In June, the Court of Appeal held that the alleged basis for the claim was contractual in nature; Meta was not being sued as a publisher or commentator, but as a contractual partner. Section 230 was therefore not applicable. The lawsuit will therefore return to the federal district court, where the plaintiffs will have the opportunity to substantiate their allegations.

Yolo should be liable because it conceals usernames

The second case concerns Yolo Technologies. This company provided an extension for the Snapchat messaging app. The extension allowed Snapchat users to post public questions. (Snapchat operator Snap has since deactivated Yolo's extension, note). Third parties could respond without revealing their identity. However, in a description of the extension, Yolo threatened to reveal the identities of the harassers in cases of harassment.

Yolo is said not to have complied with this in some cases of children being harassed. Requests for the names of the perpetrators went unanswered in at least two cases, according to the complaint. Three children and the estate of one child want to hold Yolo liable for harassing postings by unknown persons. Here too, contrary to the first instance, the appeal judges believe that Section 230 does not protect against having to take responsibility for postings by strangers. Whether the children can rely on Yolo's announcement to disclose certain names must now be clarified by the district court.

Implications

Seen in this light, it is likely that in almost all cases it will be possible to find principles that catch operators of interactive services not as publishers or commentators, but on some other basis. After all, the terms and conditions of virtually all reputation services contain clauses designed to prevent criminal content.

The case law of the Ninth Circuit thus threatens to pull the rug out from under Section 230. There would hardly be any scope left, which is rarely the intention of the legislature. If other federal court districts were to firmly oppose this interpretation, it would increase the likelihood that the US Supreme Court would also take up this issue. On the legislative side, the view that Section 230 should be reformed is widespread; however, opinions differ widely as to how, which is why Section 230 persists after almost 30 years.

The case against Tiktok is Taiwanna Anderson et al v Tiktok et Bytedance. The interlocutory decision of the U.S. Court of Appeals for the Third Circuit is docket no. 22-3061. The case now moves back to the U.S. District Court for Eastern Pennsylvania, where it is pending under docket no. 2:22-cv-01849.

• Zulassung der Klage Anderson et al v Tiktok et Bytedance​
• Zulassung der Klage Christopher Calise et Anastastia Groschen v Meta Platforms The case now moves to the United States Court of Appeals for the Ninth Circuit, Docket No. 22-15910, and the United States District Court for Northern California, Docket No. 4:21-cv-06186.
• Zulassung der Klage The Estate of Carson Bride et al v Yolo Technologies (U.S. Court of Appeals for the Ninth Circuit), cert. denied 23-55134, U.S. District Court for the Central District of California, cert. denied 2:21-cv-06680
• Historical Zulassung der Klage Cecilia L. Barnes v Yahoo , Case No. 05-36189 (U.S. Court of Appeals for the Ninth Circuit), to the U.S. District Court for Oregon, Case No. 05-cv-00926

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