Bride et al. v. Snap et al.

Question Presented

Whether Section 230 of the Communications Decency Act prohibits (1) misrepresentation claims against internet companies who, after claiming in their terms of service that they would ban and reveal the identities of users who cyberbullied others, then refused to do so, and (2) products liability claims against the same defendants for designing an allegedly unsafe messaging product that allowed users to send anonymous, abusive messages to teens.

Background

Section 230 of the Communications Decency Act (47 U.S.C. § 230) provides protections for internet companies against lawsuits that seek to treat them as the publisher of harmful third-party content. The law explains that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Since its passage, litigants and courts have constantly argued over what the exact scope of Section 230’s protection is.

The Ninth Circuit has broken down Section 230’s protections into a three-prong test: Section 230 applies to block legal claims against “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat . . . as a publisher or speaker (3) of information provided by another information content provider.” Despite sounding clear, litigants often argue about whether specific claims should be blocked under this test.

The determination of Section 230 coverage in each case is important. Too broad a reading of Section 230 wrongfully blocks worthy plaintiffs from the courtroom, leaving their injuries unredressed and removing incentives for powerful internet companies to act responsibly. Too narrow a reading of Section 230 could harm the online ecosystem by incentivizing internet companies to over-censor users, remove useful features, or abandon their business altogether for fear of liability.

The Case

This case was brought by a coalition of children’s rights organizations and parents of children who were cyberbullied online, many of whom killed themselves as a result of their abuse. The original defendants in the case were Snap, the creator of Snapchat, as well as two anonymous messaging app companies whose apps integrated into Snapchat called Yolo (Yolo Technologies) and LMK (Lightspace, Inc.). Snap was dismissed as a defendant in the district court.

The plaintiffs brought their lawsuit because they believe the defendants’ wrongful behavior enabled rampant cyberbullying on their apps to the detriment of children. The plaintiffs’ claims can be grouped into two major categories: misrepresentation and products liability.

The plaintiffs’ mispresentation claims allege that the defendants are liable because they declared in their terms of service that they would protect users by banning and/or revealing the identity of people using the apps to bully or abuse others, but they refused to do so when users tried to report abuse.

The plaintiffs’ product liability claims allege that the defendants’ apps were unreasonably dangerous products because they knew or should have known that one-sided anonymity would be used for widespread bullying and abuse.

In the case below, the district court dismissed all of the plaintiffs’ claims, ruling that Section 230 prohibited them. In a relatively short opinion, the court lumped most of the claims together and ruled they were all prohibited because they treated the defendants as the publishers of third-party content. Specifically, the court ruled this way be explaining the plaintiffs would not have brought their claims if the defendants’ platforms had not hosted harmful third-party content (bullying and abuse). In other words, Section 230 applied because harmful third-party content was a but-for cause of the lawsuit. The plaintiffs appealed the decision to the Ninth Circuit.

EPIC’s Brief

EPIC’s brief, submitted alongside children’s digital rights group Fairplay, argued that Section 230 should not have prohibited these claims, so the court should reverse the district court’s ruling.

The brief explained that the district court wrongfully used the “but-for” test that the Ninth Circuit and other courts have consistently repudiated when analyzing Section 230. EPIC’s brief explains that the Ninth Circuit has carefully constructed a clear limiting principle when applying Section 230: claims are only prohibited when they would necessarily require a defendant to monitor, edit, or remove harmful third-party content just because the defendant engages in some other publishing activities.

EPIC’s brief explains why the Ninth Circuit’s limiting principle is consistent with Section 230’s text, history, and purpose, and how it successfully balances the public policy interests involved.

EPIC has filed amicus briefs in other cases concerning the scope of Section 230 including Gonzalez v. Google and Herrick v. Grindr.

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