A federal court has ruled that 47 U.S.C. “Section 230” of the Communications Decency Act shields Twitter from claims it aided and abetted defamation. Brikman v. Twitter, Inc., 2020 WL 5594637 (E.D.N.Y., September 17, 2020)
The pivotal issue in the court’s analysis was that plaintiff’s allegations did not convert Twitter from a content platform to a content developer.
The plaintiffs are affiliated with Kneses Israel of Seagate, a Brooklyn synagogue. An unknown individual created a Twitter account, @KnesesG. The Complaint alleged that the account defamed the synagogue. Appeals to Twitter proved fruitless. Ultimately, the plaintiffs sued Twitter for defamation.
Twitter moved to dismiss. It argued that Section 230 shielded them. Applying the Second Circuit test set out in La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020), the court agreed, granting the Motion to Dismiss.
The court opined that the plaintiffs failed under Reid since:
(1) Twitter is an interactive computer service provider. The court observed that Twitter: “is an online platform that allows multiple users to access and share the content hosted on its servers.”
(2) The Complaint was grounded on information provided by a third party. Plaintiffs attributed the allegedly defamatory tweet to @KnesesG account. They never alleged that Twitter created the content.
(3) The Complaint treated Twitter as a publisher. The court found that predicating Twitter’s liability for failure to excise disfavored tweets would hold the platform liable as a publisher. After all, the determination of whether to retain or remove content is a publisher’s role.
The decision is squarely within the mainstream of Section 230 jurisprudence. But Section 230 continues to raise three questions which are unlikely to go away.
First, Twitter and other platforms do in fact remove certain disfavored viewpoints. So the allegations that social media functions as a publisher are not far removed.
Second, it fails to accommodate the victims of social media campaigns. Richard Jewell may have been one of the modern innocents to be targeted by an ignorant and irate crowd. It is a story as old as history: the women of Salem, Massachusetts bear silent witness to that. But social media has automated the process, and put it on steroids.
Third, Section 230 sets up an unfortunate paradox. If the social media platform intervenes to prevent egregious misconduct, it risks transforming itself into a publisher and losing the CDA shield.
Given the frenzy of the upcoming election, we can be sure that the last chapter in the Chapter 230 saga has yet to be written.
