Social Media Immunity in 2021 and Beyond: Will Platforms Continue to Avoid Litigation Exposure Faced by Offline Counterparts By: Peter J. Pizzi Peter J. Pizzi, CIPPE/US, is a business trial lawyer with decades of experience in commercial litigation, internal investigations, technology litigation, eDiscovery, and labor and employment law. A Certified Civil Trial Attorney, Peter represents corporate clients in a broad array of industries, including healthcare, pharmaceuticals, financial services, information technology, cosmetics, industrial equipment, food service and others. Recent highlights include a federal court jury verdict on a contract claim arising from an acquisition and pre-discovery dismissals of consumer class actions in the convenience store retail and private aviation industries. A member of the New Jersey, New York and Pennsylvania bars, Peter is former Chair of IADC’s Cyber Security, Data Privacy and Technology Committee. URING the 2020 election cycle, companies from being held liable for both the United States transmitting or taking down user- D presidential candidates generated content (UGC). Twice in called for changes to Section 230 of 2020, the Senate held hearings, with the Communications Decency Act of both sides demanding change to the 1996, which protects online service statute and to platform moderation providers like social media practices.1 Then, following the 1 Cat Zakrzewski and Rachel Lerman, The election was a chance for Facebook and Twitter to show they could control misinformation. Now lawmakers are grilling them on it, WASH. POST (Nov. 17, 2020), https://www.washingtonpost.com/techno 2 DEFENSE COUNSEL JOURNAL | JULY 2021 January 6, 2021 Capitol Hill riot, I. Origins Donald Trump and others within his circle were de-platformed by Defamation actions brought in Twitter, Facebook, and YouTube. 2 the New York courts in the 1980s Participants used these same against two different online platforms, as well as others, to plan platforms, Prodigy and CompuServe, the incursion into the Capitol, which created concern that the internet millions around the world watched would be awash in litigation before in real time.3 As we move further it had achieved its full potential. One into the 117th Congress, a court granted CompuServe continuation of the status quo summary judgment based upon that hardly seems possible, as demands service’s showing that CompuServe for change to Section 230 appear did not police its bulletin boards and continue to intensify, especially with therefore had no “publisher” or the large platforms advertising in “distributor” liability for the favor of change. defamatory utterances in question.4 This article will describe the A second court, however, found that elements of the statutory immunity because Prodigy portrayed its granted by Section 230 and service as “actively utilizing summarize complaints against the technology and manpower to delete current scope of Section 230 as notes from its computer bulletin interpreted by the courts. We will boards on the basis of offensiveness also explore whether the problems and ‘bad taste,’” the service was observed with social media have “clearly making decisions as to resulted from Section 230 itself. In content” and therefore was a other words, would the world have looked a lot different today had online industries faced litigation, and the threat of litigation, in the same way as traditional businesses? logy/2020/11/17/tech-hearing-dorsey- Suspended for Two Years; Will Only Be zuckerberg/; Sara Morrison, Republicans Reinstated if Conditions Permit, FACEBOOK accuse Twitter’s Jack Dorsey and other Big (June 4, 2021), https://about.fb.com/ Tech CEOs of violating their free speech rights, news/2021/06/facebook-response-to- RECODE (October 28, 2020), https://www. oversight-board-recommendations-trump/. vox.com/recode/2020/10/28/21536780/f 3 Rebecca Heilweil and Shirin Ghaffary, How acebook-twitter-google-zuckerberg-dorsey- Trump’s internet built and broadcast the pichai-senate-section-230-hearing. Capitol insurrection, RECODE (Jan. 8, 2021), 2 Following a decision supporting the de- https://www.vox.com/recode/22221285/t platforming by the Facebook Oversight rump-online-capitol-riot-far-right-parler- Board, the company extended the ban twitter-facebook. through January 2023. See Nick Clegg, In 4 Cubby, Inc. v. CompuServe, Inc., 776 F. Response to Oversight Board, Trump Supp. 135, 139 (S.D.N.Y. 1991). Social Media Immunity in 2021 and Beyond 3 “publisher” of the offending speech information content provider. for the purpose of libel law.5 Section 230(c)(2) states that no ISPs The two lawsuits, each of which which voluntarily restrict access to involved instances of actionable content will be held liable for its speech, led lawmakers to include in own “moderation” decisions. The the soon-to-be-misnamed discretion granted by the latter Communications Decency Act of provision is broad, immunizing 19966 a provision that would actions “taken in good faith to protect internet service providers restrict access to or availability of from liability. This provision did not material that the provider or user eliminate lawsuits, but certainly considers to be obscene, lewd, made an adverse outcome far less lascivious, filthy, excessively violent, likely. According to its sponsors, the harassing, or otherwise principal goal of Section 230 was to objectionable, whether or not such establish “Good Samaritan” material is constitutionally protection so that those platforms protected.”8 which chose to exercise some There are several exceptions to degree of editorial control over Section 230 immunity. Section 230 content on their platforms would does not bar liability for lawsuits: (1) not thereby be subject to publisher under federal criminal laws; (2) liability. The statute contains under intellectual property laws; (3) several “findings” and “policy” based upon any state law that is statements that extol the virtues of “consistent with” Section 230; and the internet and the desire to (4) under the Electronic promote its “continued Communications Privacy Act of development”.7 1986. In 2018, Congress created an exception to immunity for certain II. The Communications civil actions or state prosecutions Decency Act of 1996 where the underlying conduct violates specified federal laws As enacted, Section 230 contains prohibiting sex trafficking, which two primary provisions that create was added by a 2018 statutory immunity from liability. Section change called the Allow States to 230(c)(1) states that interactive Fight Online Sex Trafficking Act, service providers and users may not known as SESTA/FOSTA. The 2018 be held liable for publishing access amendment demonstrates the to material posted by another 5 Stratton Oakmont, Inc. v. Prodigy Servs. Co., struck down in Reno v. ACLU, 521 U.S. 544 No. 31063/94, 1995 WL 323710 (N.Y. Sup. (1997); Section 230 was not. Ct. May 24, 1995). 7 47 U.S.C. § 230 (a) and (b). 6 The provisions of the CDA which sought to 8 Id. at § 230(c)(2)(A) (emphasis added). prohibit obscene and like content were 4 DEFENSE COUNSEL JOURNAL | JULY 2021 challenge of revising Section 230, as Twitter added labels that read “Get many asserted that SESTA/FOSTA the facts about mail-in ballots” to did little to help solve the problem of two tweets by President Trump sex trafficking and only served to predicting mass ballot fraud, further marginalize an already at- causing Trump to issue an executive risk community.9 order calling the labels “selective censorship that is harming our III. Critiques of Section 230 national discourse.”11 Of course, the latter criticism – Attacks on Section 230 by that platforms “censor” speech and political leaders break down that practice somehow violates free according to party lines. Critics on speech rights of those affected – the Left fault platforms for distorts, rather than advances, inadequate moderation measures understanding of Section 230. The leading to the spread of hate speech, First Amendment proscribes misinformation, and calls to interference with speech by violence including against political government actors, not by private leaders. individuals or businesses, so neither Republicans in the Senate the First Amendment nor “free accuse the platforms of using the speech” rights enter into the statutory immunity to “censor” equation. 12 A vast array of courts conservative voices.10 In May 2020, 9 In the 116th Congress, the SAFE SEX 11 See Preventing Online Censorship, 85 Fed. Workers Study Act sought to study the Reg. 34,079 (May 28, 2020). A just-released unintended effects of SESTA/FOSTA. See study from NYU’s Stern School of Business H.R. 5444. The “Findings” discusses those attempts to test the conservative complaint adverse impacts. See id. at Sec. 2, available at of excessive moderation aimed at https://www.congress.gov/bill/116th- conservative voices and found that statistics congress/house-bill/5448/text. do not bear out the claim. See Paul M. 10 See supra note 1. Barrett and J. Grant Sims, False Accusation: The Unfounded Claim that Social Media Companies Censor Conservatives, NYU STERN CENTER FOR BUSINESS AND HUMAN RIGHTS (Feb. 2021), https://static1.aquarespace.com/ static/5b6df958f8370af3217d4178/t/601 87b5f45762e708708c8e9/161221718524 0/NYU+False+Accusation_2.pdf. The report collected the results of numerous studies of Facebook, Twitter, and YouTube content. The report found that, on Facebook, “right- leaning U.S. Facebook pages dominate the list of sources producing the most-engaged- with posts