Ninth Circuit Agrees with EPIC: Judges Must Apply a Narrow, Duties-Based Section 230 Analysis to Each Claim in a Lawsuit

In an opinion published today in the multidistrict litigation named In re Casino Style Games, a Ninth Circuit panel just endorsed EPIC’s synthesis of the Ninth Circuit’s Section 230 test for when a platform is “treated as the publisher.” The endorsement is brief and high-level, but it is integral to the Ninth Circuit’s decision that they don’t have jurisdiction to decide the appeal because the district court didn’t follow this test. It signals that the Ninth Circuit may continue to resist tech companies’ efforts to expand Section 230’s protections.

In re Casino Style Games is multidistrict litigation against the big three app store companies—Apple, Google, & Meta—for selling and promoting games that violate gambling laws. The tech companies said Section 230 prevented the litigation.

The district court issued an odd decision, saying one of the plaintiffs’ theories of liability was permissible under Section 230, but others were not. The court did not actually dismiss any of the claims. It also asked the Ninth Circuit to weigh in.

The plaintiffs argued on appeal the district court erred in analyzing theories of liability and not claims under Section 230. It also argued the court got its Section 230 analysis wrong by not asking whether each claim required the platform to monitor & remove thirdd-party content.

EPIC filed an amicus brief providing further support for these points and adding another that we thought especially important in this case: what the SOURCE of the platform’s duty is.

EPIC said that, even if some of the claims in the MDL require the companies to monitor & remove third-party content, the source of the duty would be the companies’ status as a seller, not as a publisher.

The Ninth Circuit declined to issue a direct 230 ruling but, in the process, signaled its agreement with EPIC’s argument. The Court ruled that it lacked jurisdiction to decide the appeal because the district court ruled on abstract legal theories, not the plaintiffs’ specific claims.

In its order, the Ninth Circuit agreed with EPIC’s synthesis: To evaluate whether Section 230 applies, what matters it not merely that third-party content is involved, but instead, “the court must consider what the underlying legal duty ‘actually requires,’” and “may also need to consider other claim-specific issues, such as the source of the underlying duty.”

While not a complete win for the plaintiffs, this ruling signals that at least one Ninth Circuit panel would be unwilling to drastically expand Section 230’s scope as the defendants in this case and others request.