Court Upholds Edge Protection from Third Party Liability

Said that extends even to content they know is false
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A federal appeals court has declined to hold edge providers liable for false third-party content posted on their sites, even if they know the information being posted is false. That is because under law the sites are not the publishers of that content.

Google, Microsoft and Yahoo! are not responsible for flooding the online search market with info on "scam" locksmiths, if the market has been so flooded, because such liability is barred by the Communications Decency Act, whose much-in-the-news Sec. 230 holds that the edge can't be treated as a publisher of third party content on their platforms.

That is the conclusion of the U.S. Court of Appeals for the D.C. Circuit, which said a complaint by 14 locksmith companies that those edge providers had conspired to flood the market with scam search results was rightly dismissed by a lower court as barred by the Communications Decency Act.

Related: Big Tech's Sec. 230 Sweetheart Deal Must End

The court did not rule on whether or not the market-flooding scam by spurious locksmiths had occurred, though for the sake of argument conceded the point since it appeared to see the legal call about whether the case could even be brought as pretty clear on its face.

"As courts uniformly recognize, [Sec.] 230 immunizes internet services for third-party content that they publish, including false statements, against causes of action of all kinds," it said.

The locksmith plaintiffs had argued that the defendants had become creators and developers of the posted content because the translated street addresses into map pinpoints, but the court did not agree. If it had, that could have spelled big liability issues for edge providers.

Related: Sen. Wyden: Zuckerberg Should be Liable for Privacy Violations

"The decision to present this third-party data in a particular format--a map--does not constitute the 'creation' or 'development' of information for purposes of Sec. 230," it said. The court also said that somewhat less precise translations, say assigning a map location from general information like a city and area code, is also covered by Sec. 230.

"The defendants’ translation [in this case by automated algorithms] of third party information into map pinpoints does not convert them into 'information content providers,'" the court concluded.

The court did not see Sec. 230 as a blank check.

"In this vein, we reject the defendants’ remarkable suggestion at oral argument argument that they would enjoy immunity even if they did in fact entirely fabricate locksmith addresses. That assertion is plainly inconsistent with the scope of the immunity that Congress has conferred. If the defendants were to fabricate addresses, those addresses would not be 'information provided by another information content provider."

The D.C. court decision was the second recent court victory for the edge on the issue of liability.

In January, the Supreme Court declined to hear the appeal of a California Supreme Court decision (Hassell vs. Bird) that Yelp was protected from liability under Sec. 230.

But Congress is currently considering whether to continue to continue to confer that immunity.

Just this week, Rep. Frank Pallone (D-N.J.), chairman of the House Energy & Commerce Committee, signaled he wants to reconsider the that protection for edge providers from liability for third-party postings.

Sen. Mark Warner (D-Va.), co-chair of the Senate Intelligence Committee and himself a former tech exec, has also said Sec. 230 may not make sense any more now that half of the country gets its news from Facebook. "Suddenly, that 1990s framework might not be exactly right," he told The Atlantic magazine last fall, citing the "arrogance" of the edge.

And Sen. Ron Wyden (D-Ore.) has been even blunter: "I just want to be clear, as the author of Sec. 230 [of the Communications Decency Act], the days when these 'pipes' are considered neutral are over because the whole point of 230 was to have a shield and a sword, and the sword hasn't been used," he has said. 

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