The Supreme Court of the United States is looking into the immunity enjoyed by digital platforms thanks to a 1996 law. At issue: their responsibility in the dissemination and promotion of problematic content. A decision that could change the Internet.

The Supreme Court of the United States is looking into

The Supreme Court of the United States is looking into the immunity enjoyed by digital platforms thanks to a 1996 law. At issue: their responsibility in the dissemination and promotion of problematic content. A decision that could change the Internet.

Google, Facebook, Twitter, TikTok… The functioning of the Internet as it is today could soon change radically, according to a decision by the American Supreme Court. Indeed, the nine judges who constitute it examined, on Tuesday, February 21, a file concerning the Paris attacks of 2015 which could call into question section 230 of the Communications Decency Act, a fundamental text which governs the moderation of content on the Web and gives platforms a kind of immunity.

On November 13, 2015, Nohemi Gonzalez, a 23-year-old American student, was killed in a terrorist attack carried out by the Islamic State (IS) while she was on the terrace of a restaurant. In 2016, her family filed a complaint against Google – which owns YouTube – accusing it of having participated in the radicalization of the terrorists who killed their daughter by not moderating enough, or even by participating in the broadcast – via the automatic algorithm-generated recommendations – of ISIS propaganda videos. The Gonzalezes have already lost the lawsuit twice, at first instance and on appeal, in California courts, before seeking the Supreme Court, the highest court in the United States. Against all odds, the latter took up the case – even though it had so far refused almost all of the appeals – and is preparing to determine whether the Internet giants are accomplices of the terrorist, as reported by the washington post. A decision that could well change the historic law regarding the responsibility of the major platforms for the content published by users and profoundly modify the functioning of the Internet.

Gonzalez vs Google: are the platforms responsible for their content?

In 2015, the Islamic State flooded YouTube with videos of executions, recruited supporters on Facebook and multiplied incitement to terrorist acts on Twitter. Suffice to say that the major platforms have been serious propaganda channels for IS… According to the Gonzalez family, this type of content weighed on the terrorist’s decision to take action. According to her, YouTube would not only have broadcast the videos in question, but would have outright recommended them to its users via its algorithms. “When you click on a video, YouTube systematically offers you others that you did not request”, said Eric Schnapper, the lawyer for the Gonzalez family. As a result, the Google platform would have violated the laws against aiding and abetting foreign terrorist groups and therefore could not benefit from the immunity prevailing under section 230, the law that Google invokes in its defense.

As a reminder, US law protects content distribution platforms in the name of freedom of expression, which is guaranteed by the first amendment to the US Constitution, and the protection of innovation via section 230 of the Communications Decency Act. . Adopted in 1996, the latter exempts them from any responsibility when they host “problematic” content produced by Internet users, unless this content has been reported to them as illegal. To put it simply, the sites are not considered “publishers” and are therefore not criminally responsible for the content.

Section 230: a law that has become obsolete

Section 230 was put in place in 1996, when the Internet was still in its infancy. Parliamentarians therefore had to secure the sector in order to allow its development, in particular by protecting its actors from cascading lawsuits. But in thirty years, the Internet has changed a lot and the law has become somewhat “prehistoric”. Where it used to protect small platforms that addressed small communities, it now covers digital giants that reach billions of users. Therefore, from many voices have been demanding for years that it be modified or withdrawn, and that giants like Google, Meta – the parent company of Facebook and Instagram – or Twitter are held responsible when they facilitate the spread of this type of content, which can have serious repercussions in the real world. These are not today no longer simple hosts, but editors who highlight certain content and make recommendations thanks to algorithms.

“We are in a delicate situation, because this text was written in another era, when the Internet was completely different”, summarizes the judge Elena Kagan. For his part, Judge John Roberts fears that case law may “crash the digital economy, with all sorts of consequences for workers and pension funds”, as Google predicts in its pitch. The lawyer of the digital giant, Lisa Blatt, evokes the possibility of a world with the “Truman show, where web services would preemptively remove anything that might be legally questionable or refuse to moderate anything on their site. Allows to “sue platforms for recommendations […] expose them to complaints for third-party content absolutely all the time”adds the Meta group, quoted by AFP.

Gonzalez vs Google: a case that will upset digital legislation

By agreeing to take up the case, the Supreme Court leaves the door open to an evolution of case law. This court case would be an opportunity for judges to limit the scope of section 230 and expose platforms to lawsuits if they misuse their algorithms. Especially since a second, quite similar file must also be studied by the Court on Wednesday, February 22. Indeed, after a attack perpetrated in an Istanbul nightclub on 1er January 2017, a US Court of Appeals ruled that Twitter could be considered “partner in crime” due to lack of effort “vigorous” in terms of content moderation. The blue bird has seized the legal instance.

If the Supreme Court were to decide this summer against the platforms – the decision is expected before the end of June – the entire structure of the Internet could be affected. Because, to avoid a flood of legal proceedings, platforms should change the way they present and highlight their content. In any case, the Gonzalez case will certainly not be the last concerning Section 230, even if this case is once again dismissed.

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