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For Section 230 critics, appeals ruling against Facebook is a win for accountability

WASHINGTON (THE WASHINGTON POST) – The Supreme Court dealt a major loss to critics of the tech industry’s liability protections under Section 230 in a pair of closely watched cases last month, sidestepping calls to narrow the legal shield and let the courts hear claims that social media platforms abetted terrorism.

But civil rights advocates and some Democratic lawmakers are touting a lower-court ruling blocking Facebook from using Section 230 to dismiss discriminatory advertising claims. They say the decision could open the door to hold more platforms accountable for their actions.

Despite some prominent setbacks, efforts to poke new holes in the industries liability shield are forging ahead – and the debate over where the protections begin and end is raging on in the courtroom and in Washington.

The US Court of Appeals for the 9th Circuit on Friday reversed an earlier decision in Rosemarie Vargas, et al v. Facebook, Inc that the social media giant could not be held liable for discrimination over allegations it excluded housing ads from a user based on their protected classes.

Vargas, a disabled woman of Hispanic descent, alleged that she was “prevented from having the same opportunity to view ads for housing” on Facebook as a White friend.

Section 230 has long shielded platforms from lawsuits for hosting third-party content and making “good faith” efforts to moderate noxious material posted by users.

But the court ruled that, if true, the plaintiffs’ claims “challenge Facebook’s conduct as a co-developer of content and not merely as a publisher of information provided by another information content provider.”

Ashley Settle, spokesperson for Facebook parent company Meta, said they are reviewing the ruling but declined additional comment on the case. The company in January announced a new program aimed at delivering ads more equitably as part of a settlement with the federal government.

Civil rights advocate David Brody called it a “very significant” ruling that could pave the way for more lawsuits seeking to hold platforms responsible for violating anti-discrimination laws.

“The implication of this decision is that the company or a party that develops the algorithm bears responsibility for its output,” said Brody, a managing attorney for the Lawyers’ Committee for Civil Rights Under Law, which filed an amicus brief in the case favouring the plaintiffs.

The court’s ruling was issued on an unpublished basis, meaning that its ability to set any direct legal precedent may be limited. But legal experts say it adds to a growing body of case law limiting how Section 230 applies to tech companies.

“One of the developing arguments or themes that we’re starting to see…is this attempt to separate the conduct and actions of the platform itself versus the underlying user-generated content aspects,” said Jess Miers, legal advocacy counsel at the Chamber of Progress.

Miers, whose left-leaning trade group receives funding from Apple, Amazon and Facebook parent company Meta, said if other similar rulings drop, it could lead to “services not being comfortable with recommending content.”

Critics across the political spectrum have argued the courts have interpreted the law too broadly and that it has allowed tech companies to escape accountability over how they handle user content and conduct business on their sites.

Tech companies credit the law with laying the foundation for the modern internet and enabling a wide range of digital services to host and moderate user content without fear of costly litigation.

Senator Ron Wyden (Democrat-Oregon), who co-authored the law as a congressman in the 1990s, praised the 9th Circuit’s ruling and called it “another reminder to policymakers and pundits that Section 230 is not a ‘get out of jail free’ card for internet platforms.”

Wyden said in a statement to The Technology 202 that the ruling “joins an encouraging body of case law that allows platforms to be held accountable for their actions while preserving Section 230’s vital role in protecting platforms’ moderation decisions and supporting online speech.”

While the decision marked a victory for critics of Section 230, it’s unlikely to quiet calls to create new exceptions to the law or to formalize gaps found by the courts.

Senator Mark R Warner (Democrat-Virginia), who introduced a bill to prevent the liability shield from being used against civil rights or advertising claims, said “Congress still needs to ensure that Section 230 cannot continue to help bad actors evade applicable civil rights and consumer protections, among other laws.”

This file photo shows a Facebook logo being displayed in a start-up companies gathering at Paris’ Station F, in Paris on January 17, 2017. PHOTO: AP
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