The Robins Kaplan Privacy Pulse | Recent Court Decisions Question Internet Companies’ Liability Shield

September 21, 2021

A pair of recent rulings—one in the U.S. and another in Australia—hint at a future in which internet companies may not enjoy the immunity they currently hold for content created by others that appears on their sites.

Australia’s top judicial body, the High Court of Australia, ruled in early September that “newspapers and television stations that post articles on Facebook Inc.’s platform are liable for other Facebook users’ comments on those posts, a ruling that could prompt traditional publishers to rethink how they engage with social media,” according to the Wall Street Journal. While the ruling targeted media publications rather Facebook itself, the leap to finding social media platforms responsible for the posts of their users appears narrower Down Under than it did just weeks ago.

Here in the States, where Section 230 of the Communications Decency Act famously “shields internet service providers from liability for content posted on their platforms by third parties,” a California federal judge invoked an exemption created by the Allow States to Fight Online Sex Trafficking Act (FOSTA) to deny a motion to dismiss by MindGeek USA of claims seeking to hold the PornHub owner liable for videos posted on its site. As detailed by Law360, the ruling found that the plaintiff in the civil action “sufficiently alleged MindGeek is part of a venture that benefits from the distribution of child pornography and that it either knew or should have known that child pornography was prevalent on its platform via warnings from law enforcement, rights groups and others.” While the FOSTA exemption only affected the plaintiff’s federal claim, the court also let California state law claims proceed, suggesting that other challenges to Section 230’s liability shield may at least make it past the pleading stage if the facts are right.