A new horizon in liability is afoot. Social media and influencers have been the subject of numerous complaints regarding false and misleading information. All business social platforms are persistently conscious of the protections of Section 230 of the Communications Decency Act, which provides:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” (47 U.S.C. § 230(c)(1)).
This law prevents most lawsuits against users or services that are based on what third parties say and has been characterized as big tech’s get-out-of-court free card. However, it also protects many online companies or other businesses who advertise on the internet from liability arising from posts from third parties. The intent of Section 230 was to limit liability to the person who created it, not the web providers on whose platform the content is posted or the users who re-post or share it.
The technology and framework of social media platforms and business websites have evolved rapidly, and the Internet is now the norm for communication. In the social media setting, businesses and platforms have been largely focused on the monitoring of incoming traffic, but counsel needs to ensure that outgoing traffic is also monitored for accuracy due to the immunity limitations in Section 230. There is a genuine fear among business professionals that despite Section 230, they may be held accountable for their users’ views and judgment, especially when it is re-circulated on their business platform or the businesses’ Facebook page. Moreover, though the business entity may not create the information, there is grave concern of liability for hosting the information or imperfectly vetting it. For example, an e-commerce business may have immunity for third-party comments about a product they are hosting on their website even though customer reviews may include a warning about the product’s safety. In some states, the e-commerce host may be deemed a “seller” and therefore be exposed to a product liability lawsuit.
Texas recently filed a lawsuit against a “fitness influencer” for “deceptive business practices.” The alleged harm of her advertisement on social media was that she portrayed her specific services in a manner that misguided her customers into believing she had expertise, ability, and services. In fact, she did not. The case was settled out of court. Lawyers will want to be aware of the needs of clients engaging in promotion, advertisement, or marketing and ensure embellishment is not the norm. Lawyers need to acknowledge the business interests of exposure on social media but be prepared to advise clients regarding the legal implications of postings, representations, and marketing campaigns from their original content or third parties.
The US Supreme Court is currently considering Gonzalez v. Google. The plaintiffs accuse Google of spreading radicalized content through their computer algorithm when one of their users read the content, became radicalized, and committed a terrorist act. They want Google held liable for the death of their daughter, who was one of the victims. The lawsuit’s outcome will determine whether Section 230 provides immunity in these circumstances and will have far-reaching implications. Google is not the only business entity using computer algorithms to generate content for its users. And with AI in the mix now, more and more businesses are using algorithms to generate website content.
Of course, many poor marketing strategies and decisions were made in the age of print and broadcast media. The propensity for error on the internet has not changed. Counsel should posture themselves to provide reminders of the exposure to liability by using the internet and social media to market or for other reasons. Lawyers should remain focused on attempts at manipulation or misrepresentation, and clients must be counseled as to the ongoing threat of liability and reminded that the internet and social media, like print, may be pitfalls for liability.