WASHINGTON — In a win for technology platforms and the online adult entertainment industry, the U.S. Supreme Court chose not to touch Section 230 of the Communications Decency Act of 1996 and the safe-harbor provision that immunize web platforms from the potentially illegal actions of third-party users. YNOT has reported extensively on the Supreme Court case in question, Gonzalez v. Google.
What happened specifically is that the conservative-leaning Supreme Court declined to hear the case and remanded the case to the lower court, the United State Court of Appeals for the Ninth Circuit. In doing so, the high court sided with the tech industry and civil society organizations advocating for civil liberties on the internet who claim that exposing web platforms to much more liability could break the internet as we know it.
Organizations like Woodhull Freedom Foundation and the Free Speech Coalition have advocated for Section 230, which empowers platforms to self-regulate and moderate content published by third-party users who violate a site’s terms and conditions or the law.
Section 230 is a measure that also empowers platforms, like Pornhub and XVideos, to police their platforms for child sexual abuse material (CSAM) and other non-consensual illegal content posted without consent or against long-standing criminal statutes prohibiting the production of such material. At the heart of Gonzalez v. Google is whether Section 230 covers algorithms, like video recommendations.
As YNOT has previously reported, the family of Nohemi Gonzalez sued Google-owned YouTube for circulating radical Islamic terrorist propaganda ahead of the 2015 Paris terror attacks carried out by Islamic State. Nohemi, a U.S. resident studying abroad in Paris at the time, was killed in the attacks. The father of the deceased, her estate, and her family accused Google of being complicit in her death due to recommendation algorithms that gave a promotion of Islamic State and extremist propaganda posted to the site.
The plaintiffs allege that YouTube, the world’s most popular video-sharing service, gave material help and has contributed to the terrorist group’s activities in recruiting new ISIS supporters and members.
“We, therefore, decline to address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief,” the high court wrote in a publicly-released unsigned ruling. “Instead, we vacate the judgment below and remand the case for the Ninth Circuit to consider [the] plaintiffs’ complaint in light of our decision in Twitter.”
Here, the high court refers to a companion case dealing with liability that shields social media giant Twitter from the circulation of terrorist-related content on its platform. In Twitter v. Taamneh the court considered whether Twitter, as a platform, aided and abetted the circulation of terrorist-related content circulated by the Islamic State group.
Writing for the unanimous court, conservative Justice Clarence Thomas stated that “the concepts of aiding and abetting and substantial assistance do not lend themselves to crisp, bright-line distinctions.” The case was again remanded to the Ninth Circuit under the consensus, per Thomas, that the “mere creation” of a social media platform isn’t sufficient to establish liability and even if groups like Islamic State are able to use it, that fact alone isn’t enough to constitute “aiding and abetting” ISIS in its terrorist acts.
The court’s unanimous opinion strengthens Section 230’s role as a shield law for the web platforms that we use on a daily basis. Applying this logic to the adult entertainment industry, it likely means that because the vast majority of content offered by a site like Pornhub is legal, the illegal use of such a platform by a third-party to circulate CSAM and material that the platform has no hand in producing or publishing doesn’t necessarily create liability for Pornhub, social media sites, or other platforms which rely on the protection of Section 230.