The U.S. Supreme Court on Monday boosted one of the tech industry's go-to defenses in suits to hold websites liable for content posted by others, rebuffing an appeal by women who accused an online ad site of promoting child sex trafficking.
The justices refused to consider reviving a lawsuit against Backpage.com filed by three young women who claimed the website facilitated their forced prostitution through classified advertisements posted in its "escorts" section.
The high court let stand a lower court's decision last year to dismiss the lawsuit because the Communications Decency Act, a 1996 law protecting free speech on the internet, shielded Backpage from liability for the content of the ads. Tech companies commonly invoke the Communications Decency Act in defending against similar lawsuits.
Throughout, the primary questions vexing both the legal community and computer services industry have been: Where should courts place the fulcrum between "interactive computer service" providers and "information content provider," such that congressional intent and policy objectives regarding Section-230 immunity are upheld? That is, what kinds of actions and uses of online communication tools on the part of an ISP should amount to partial “creation or development” of content by an "information content provider"?
The problem described above (and as illustrated by the lawsuit against Backpage) is complex and multifaceted. In the most basic terms: § 230’s statutory definitions--upon which immunity turns--are composed of ambiguous and overlapping terms, and increasingly diverse and interactive online service providers do not neatly map onto those categories. Consequently, CDA-jurisprudence has long suffered from inconsistency, court holdings often at odds with the policy objectives originally enshrined in the Act.
It appears, then, that the givens are resoundingly clear. There is a great need for the Supreme Court to supply lower courts with a unifying standard that follows Congress’s calculus of competing interests--that is, offering wide-ranging protection for innovation and self-regulation among online service providers, while enabling victims’ access to means of effective recourse when circumstances warrant treating an ISP as a traditional publisher. When the right case comes along, the Supreme Court should grant cert and clarify the conflict of law currently taking place at the circuit level.*
*Recall that the Ninth Circuit markedly deviated from traditional CDA-interpretation by fashioning the "material contribution" standard for liability in Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC.