The Henderson test may weaken Section 230

  • The legal standard, which Google’s lawyer told the Supreme Court is about “96% correct,” could dramatically undermine the liability shield the company and other tech platforms have relied on for decades, according to several experts who defend the 230- th section.
  • In its Supreme Court brief in Gonzalez v. Google, Google sought to distinguish the actions of a search engine, social media site, or chat room from those of a credit reporting website, such as the Henderson case.
  • But his arguments could backfire, leaving room for the Court to significantly weaken Section 230, lawyers say.

US Supreme Court v. Blue Sky in Washington, DC. Photographer: Stephanie Reynolds/Bloomberg

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The legal test, which Google’s lawyer told the Supreme Court is about “96% correct,” could dramatically undermine the liability shield the company and other tech platforms have relied on for decades, according to several experts who advocate for the law. for the highest degree of preservation. .

The so-called Henderson test would significantly weaken the power of Section 230 of the Communications Decency Act, several experts said during oral arguments in conversations and briefings in the Gonzalez v. Google case. Some of those who criticized Google’s concession even work for groups supported by the company.

Section 230 is a statute that protects the ability of technology platforms to accept material from users, such as social media posts, uploaded video and audio files, and comments, without being held liable for their content. It also allows platforms to monitor their services and remove posts they deem objectionable.

The law is central to an issue the Supreme Court will decide in the Gonzalez case, which asks whether platforms like Google’s YouTube can be held liable for algorithmically recommending user posts that appear to endorse or promote terrorism.

During arguments on Tuesday, the justices appeared hesitant to issue a ruling that would revisit Section 230.

But even if they avoid interpreting that law, they can still make caveats that change the way it is applied or pave the way for changing the law in the future.

Some lawyers believe that one way the Supreme Court has violated Section 230 is by adopting the Henderson test. Ironically, Google’s lawyers may give the court more confidence to uphold this test if it chooses to do so.

Henderson’s test began in November ruling By the Fourth Circuit Court of Appeals in Henderson v. Public Data Source. The plaintiffs in that case sued a group of companies that collect public information about individuals, such as criminal records, voting records and driver’s license information, and then put it into a database that they sell to third parties. The plaintiffs alleged that the companies violated the Fair Credit Reporting Act by failing to maintain accurate information and providing inaccurate information to a potential employer.

A lower court ruled that Section 230 barred the lawsuits, but an appeals court overturned that ruling.

The appeals court wrote that to apply the protection of Article 230, “we require that the defendant be held liable for the inappropriate content of their publication.”

In this case, the culprit was not the content, but how the company chose to present it.

The court also ruled that Public Data was responsible for the content because it decided how to present it, even though the information was taken from other sources. The court noted that it was likely that some of the information sent to one of the plaintiff’s potential employers in the Public Data was “inaccurate because it omitted or summarized information in a way that made it misleading.” In other words, after Public Data has made changes to the information it receives, it has become a provider of information content.

If the Supreme Court upholds Henderson’s decision, it would effectively “repeal Section 230,” said Jess Mears, a legal counsel for the House of Progress, a left-of-center industry group that counts Google among its supporters. Mears said that’s because the main benefit of Section 230 is that it helps quickly dismiss cases against platforms that focus on user posts.

“That’s a really dangerous test because, again, it encourages plaintiffs to then frame their claims in a way that says, well, we’re not talking about how inappropriate the content is,” Mears said. “We’re talking about how the service aggregated that content or compiled that content.”

Eric Goldman, a professor at the Santa Clara University School of Law, wrote on it blog that Henderson “would have been a disastrous judgment if adopted by SCOTUS.”

“It was shocking to me to see Google uphold the Henderson opinion because it’s a dramatic narrowing of Section 230,” Goldman said at a virtual press conference hosted by the House of Progress after the arguments. “And to what extent does the Supreme Court take that bait and say, “Henderson is good for Google, it’s good for us,” we will actually see a dramatic narrowing of Section 230, where plaintiffs will find many other avenues to bring cases based on third-party content. They’ll just say they’re based on something other than the damage that was in the third-party content itself.”

Google pointed to parts of it short In the Gonzalez case discussing the Henderson test. In summary, Google seeks to distinguish between the actions of a search engine, social media site, or chat room that display snippets of third-party information from a credit reporting website, such as the one at issue in Henderson.

In the case of Chat, Google says that while “the operator provides the organization and layout, the underlying posts are still third-party content,” meaning it would fall under Section 230.

“In contrast, when a credit reporting website fails to provide users with its required statement of consumer rights, section 230(c)(1) does not bar liability,” Google wrote. “Even if the site also publishes third-party content, the summary of consumer rights and not providing that information to customers is only the site’s action.”

Google also said that 230 would not apply to websites that “require users to transmit allegedly illegal preferences,” such as those that would violate housing law. That’s because “contributing materially [the content’s] illegality,’ the site makes that content its own and is responsible for it,” Google said, citing Fair Housing Council of the San Fernando Valley v. in 2008.

Section 230 experts digesting the Supreme Court’s arguments were baffled by Google’s lawyer’s decision to give such blanket approval to Henderson. Trying to make sense of it, some suggested it might be a strategic decision to try to show the justices that Section 230 isn’t an endless free pass for tech platforms.

But in doing so, many also felt Google went too far.

Kathy Gellis, who represented amici in the brief filed in the case, said in a House briefing on the progress that Google’s counsel is likely trying to draw the line between where Section 230 does and does not apply, but “by confirming it as broad, it has endorsed perhaps more than we bargained for, and certainly more than amici would necessarily have signed.”

Corbin Barthold, Internet Policy Consultant Powered by Google TechFreedom said in a separate press conference that the idea Google may have been trying to convey to support Henderson wasn’t necessarily bad in itself. He said they seemed to be trying to make the argument that even if you use a definition of publication like Henderson’s, the organization of information is inherent to what platforms do because “there is no such thing as a raw information transfer”.

But in making that argument, Barthold said, Google’s attorney “kind of threw himself into luck.”

“Because if the court doesn’t go with the argument that Google made that there’s really no difference here, it could go in a bad direction,” he added.

Mears suggested that Google may have viewed Henderson’s case as relatively safe, given that it involved an alleged violation of the Fair Credit Reporting Act, rather than a matter of a user’s social media post.

“Maybe Google’s lawyers were looking for a way to show the court that there are limits to Section 230 immunity,” Mears said. “But I think that in doing so, it invites a rather problematic reading of the immunity test of Section 230, which could have quite irreparable results for future internet law litigation.”

WATCH: Why the Supreme Court’s Section 230 Case Could Reshape the Internet

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