Updates
Ninth Circuit Recognizes Section 230 Not a Get-Out-of-Jail-Free Card for Tech Companies That Allegedly Lie to Users
August 22, 2024
Today, August 22, 2024, the Ninth Circuit issued an opinion in Bride v. YOLO Technologies, an important case about the proper scope of Section 230, a law that prevents certain types of lawsuits against companies that run online platforms. EPIC and Fairplay had filed an amicus brief in the case urging the court to rule that Section 230 did not block the claims. The court issued a mixed ruling in which it recognized that Section 230 did not prohibit the claims based on the app developer’s misrepresentations to users, but Section 230 did prohibit the plaintiffs’ claims alleging that the app was defectively designed.
This is a crucial ruling for users of online platforms who depend on platforms’ terms of service, community guidelines, and other representations in order to understand their rights and protections online. When platforms misrepresent users’ rights and protections, it leaves users vulnerable and prohibits them from being informed consumers. Unlike cases in which Section 230 is properly invoked to prevent lawsuits, these type of misrepresentation claims do not risk creating impossible burdens for tech platforms. They simply have to live up to their promises or avoid making them in the first place.
The case centers around whether an app developer YOLO could be sued by the family of a teen who took his life after being relentlessly bullied on YOLO’s app, as well as other plaintiffs who were children also bullied on the app. On the YOLO app, users could submit questions for their contacts to answer anonymously. The contacts’ answers would be publicly displayed to anybody who viewed the user’s profile. YOLO promised users that it had a zero-tolerance policy for bullying and harassment and would reveal the identities and ban users found to violate that policy, but it never actually enforced this policy. The plaintiffs, all of whom had been mercilessly bullied on the app, sued, alleging that YOLO harmed them by lying about its zero-tolerance policy and that the app was defectively designed because it allowed anonymous public messaging, which they alleged the company should have foreseen would inevitably lead to bullying.
YOLO invoked a Section 230 defense, arguing that all of the plaintiffs’ claims needed to be dismissed because they treated it as the publisher of third-party content. It attempted to distinguish prior, similar cases such as Barnes v. Yahoo by claiming they created a specific contract-based exception to Section 230. The district court agreed with YOLO, leading to this appeal.
As EPIC explained in its amicus brief, the district court’s analysis was flawed. The presence of harmful third-party content alone is not sufficient to invoke a Section 230 defense. If that were the case, nearly no lawsuits could be brought against any platform companies for their harmful behavior. Instead, Ninth Circuit courts use a nuanced, duties-based framework to evaluate whether Section 230 applies.
The Ninth Circuit largely agreed with EPIC. The panel properly laid out the two part duties-based test for whether a claim treats a defendant as a publisher or speaker:
First, we examine the right from which the duty springs. Does it stem from the platform’s status as a publisher (in which case it is barred by § 230)? Or does it spring from some other obligation, such as a promise or contract (which, under Barnes, is distinct from publication and not barred by § 230)? Second, we ask what “this duty requir[es] the defendant to do.” Id. If it requires that YOLO moderate content to fulfill its duty, then § 230 immunity attaches. (cleaned up)
The panel explained that Section 230 has important limiting principles:
It is imperative to consider that “neither [subsection 230(c)] nor any other declares a general immunity from liability deriving from third-party content. Indeed, that could not be true; for most applications of § 230 in our internet age involve social media companies, which nearly all provide some form of platform for users to communicate with each other. In cases such as these, publishing activity is a but-for cause of just about everything defendants are involved in. They are internet publishing businesses. . . . The question of whether § 230 immunity applies is not simply a matter of examining the record to see if a claim, including its underlying facts, stems from third-party content. (cleaned up)
Further, the panel pushed back on YOLO’s attempt to position prior cases as creating a contract exception to Section 230, recognizing that Section 230’s limitations are broader than that:
Nor is there a bright-line rule allowing contract claims and prohibiting tort claims that do not require moderating content, for that would be inconsistent with those cases where we have allowed tort claims to proceed, and contradict our prior position that the name of a cause of action is irrelevant to immunity. (cleaned up)
The panel used the two-part duties-based framework to find that Section 230 does not block the plaintiffs’ misrepresentation claims. YOLO had promised users it would protect them in certain ways. YOLO’s duty to live up to its promises springs not from its status as a publisher but from its decision to make promises. Users can thus sue YOLO for allegedly failing to live up to those promises, and Section 230 won’t block their day in court.
Unfortunately, the Court did not engage in the same careful duties-based framework for the defective design claims and agreed with the district court that they are blocked by Section 230. However, the court noted that the plaintiffs raised some new, more nuanced arguments about defective design too late in the appeal for the court to properly consider, and that these claims could potentially survive Section 230 if the plaintiffs amend their complaint.
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