For more than two decades, Section 230 of the Communications Decency Act (CDA) has allowed the internet, and the digital economy as we know it, to thrive by ensuring that web-enabled platforms and services can't be held liable every time anyone uses them for no good.
The following four legal battles—involving the cannabis and dispensary database Weedmaps, the firearms forum and ads platform Armslist, the gay hookup app Grindr, and the crowdsourced-review mecca Yelp—offer a small glimpse at the kinds of varied activity and platforms protected by Section 230.
Dispensary-listing app Weedmaps versus California regulators
In California, various state entities have been eyeing and targeting Weedmaps, which helps connect consumers to cannabis dispensaries in their area and lets users review cannabis products, strains, and businesses. The Monterey Herald reports that "there's talk of the state Attorney General taking up a case against the company." Weedmaps is also facing a fight with the state Bureau of Cannabis Control (BCC).
The BCC tried to go after Weedmaps for not listing a BCC license number on its ads. But the bureaucrats backed off that route when the company pointed out that it was not legally required to be licenced by the agency.
BCC also argues that Weedmaps is "aiding and abetting in violations of state cannabis laws." Weedmaps notes which services are state-approved and includes their license numbers, but it doesn't refuse listings from businesses that don't provide proof of licensing. BCC says this makes Weedmaps party to any fraud or licensing violations committed by these businesses.
Imagine if the Yellow Pages of yore had to personally vetted all businesses it listed or accept liability for any of their wrongdoing. It would have been ludicrous. Luckily, Section 230 means online directories aren't responsible anytime a user ends up being or doing something shady.
If California regulators are worried about fraudulent cannabis businesses, then they should go after fraudulent cannabis businesses, not digital platforms that connect consumers with largely law-abiding companies. It's simply not the responsibility of platforms like these to individually vet every entity that signs up. Weedmaps, Yelp, and other consumer-review oriented sites are in the business of providing a platform for crowdsourced information; they're not a substitute for due dilligence on the part of consumers or legal action against businesses that do commit fraud.
Should state authorities continue to pursue Weedmaps, we've got a big old Section 230 battle on our hands. Lawyer Chris Hoo told the Herald that this would "truly test the limits of online ad content liability and the interactions between California and federal law in the years to come."
Gun forum Armslist under attack
The Wisconsin Supreme Court last week agreed to hear Daniel v. Armslist, a lawsuit in which the plaintiff wants to hold the firearms ad and discussion forum Armslist responsible for violence committed by someone who purchased a gun through someone he connected with on the site. "As with a lot of the litigation challenging Section 230 it was one of those 'bad facts make bad law' sorts of cases," writes lawyer Cathy Gellis at Techdirt:
In this case an estranged husband, against whom there was a restraining order, bought a gun from an unlicensed seller who had advertised through the Armslist site. Notably it does not appear that the sale was necessarily illegal—in Wisconsin unlicensed dealers apparently do not have to run background checks—nor was the sale fully transacted on the site (the actual purchase was made in a McDonalds parking lot). Of course, even if the sale had been illegal, or fully brokered via the site, Section 230 should still have insulated the platform, but here the Section 230 inquiry should be much more straight forward: the lawsuit alleging that Armslist negligently designed a site that facilitated a third party's speech—in this case, the speech offering the gun for sale—should have been barred by Section 230.
The trial court dismissed the case. But a state appeals court reversed the decision, prompting Armslist to appeal to the state Supreme Court.
Because no arms seller can guarantee a gun won't be used for a crime, this opens up any such entity to liability, no matter how legal and thorough they are. It also has reach far beyond the world of firearms.
"It would be easy for the tragedy underpinning this case to cause the court to fixate on Armslist and the type of user content it intermediates," writes Gellis. "But Internet platforms come in all sorts of shapes and sizes, offering all sorts of services, and enabling all sorts of speech on all sorts of topics. And all of them will be affected by how the court resolves this particular case before it. So we hope our brief helps remind the Wisconsin justices of just how much is at stake."
Grindr gets sued for ex-boyfriend's harassment
In Herrick v. Grindr, a man's ex-boyfriend created a string of fake profiles for him on the hookup app and directed men to meet him in person for sex. That's clearly bad behavior, but the fault is with the harassing ex, not Grindr—right?
Matthew Herrick, the victim of the harassment, is trying to argue otherwise. As in the Armslist case, "the general theory" in Herrick v. Grindr "is that because people were able to use the platform to do bad things, the platforms themselves should be legally liable for the resulting harm," writes Gellis at Techdirt. "Of course, if this theory were correct, what platform could exist?"
A recognition that many people will use the internet (as they do all communications and business channels) for unsavory things and exploit law-abiding entities for nefarious purposes is what "caused Congress to pass Section 230 in the first place," Gellis adds. "If platforms needed to answer for the terrible things their users used them for, then they could never afford to remain available for all the good things people used them for too."
In Herrick's case, Grindr did not create "the problematic content," notes Gellis. "The plain language of Section 230…prevents platforms from being held liable for content created by others." Therefore this case should be barred by Section 230. If it weren't, any sort of dating, hookup, or general social app could be in trouble anytime someone uses it to threaten, harass, or defraud another user.
An additional problem in this case is that Herrick has changed his story about the harassment over the course of his litigation. Earlier this month, he told the appeals court that because of the fake profiles, "strange men were showing up in his life not just constantly but everywhere he went," in Gellis' words. "Yet according to the record at the trial court, they only showed up in two places: his home and his work."
Herrick has alleged that some feature of Grindr allowed him to be geotracked through the fake profiles his ex created, thus enabling would-be suitors to find him wherever he went. "If [the men meeting him] truly was everywhere then he might have a point about the app having a vulnerability, and if so then perhaps his defective design claim might start to be colorable," suggests Gellis. But Grindr says that no such thing happened or is even possible. They say the ex, who knew Herrick's home and work addresses, shared these with duped users via direct message.
If that's the case, "the reason they turned up at either of these places was because of content supplied by a third party (the ex-boyfriend)," Gellis concludes. "This fact puts the case clearly in Section 230-land and makes the case one where someone is trying to hold a platform liable for harm caused by how another communicated through their system."
Yelp verus badly-reviewed lawyer
In Bird v. Hassell, Ava Bird posted a negative review of lawyer Dawn Hassell on Yelp, didn't show up for court when Hassell sued her, and didn't take down the ad when the court ordered her to. Hassell argued that Yelp was responsible for removing the review, but Yelp had not been party to Hassell's lawsuit.
The Supreme Court of California ruled that Yelp isn't liable, and it specifically cited Section 230 in its ruling. Hassell then turned to the U.S. Supreme Court, which this week declined to hear the case. The California Supreme Court's decisions stands.
It's not surprising that SCOTUS "decided not to hear the case," writes Mike Masnick at Techdirt, "as there is widespread agreement that this is exactly how CDA 230 is meant to work and it's how basically every circuit that has ruled on this issue has found, so there's no circuit split to deal with. Having the Supreme Court refuse to hear a case isn't always newsworthy, but it's at least a bit of a relief that the court apparently didn't think this one was an issue worth reconsidering. The internet and the services we all use, remain protected… for now."