By Kate Tummarello, Executive Director, Engine Advocacy & Foundation
The Supreme Court is going to consider several cases early next year that could change the way Internet companies host content and how creators and other digital entrepreneurs find and grow their audiences. Depending on how the court rules in one of those cases, Gonzalez v. Google, social media and other Internet platforms might end up having to remove and significantly change the way they recommend content created by digital entrepreneurs.
In Gonzalez, the court specifically is considering whether an Internet platform should be open to lawsuits when it allegedly recommends illegal content. At the core of the case is Section 230 — a foundational Internet law that has led to the innovative and creative Internet we know today — which allows platforms to quickly dismiss lawsuits when someone claims that a piece of user content on the platform is illegal. But some justices have been critical of Section 230 and have said they’re eager for the court to take a broader look at the law, so the ruling could go far beyond the specific question about recommendations and impact platforms’ ability to not just recommend, but host, user content.
You’re likely reading this and thinking, “so what? I don’t post anything illegal.” (Or, if you’re a startup founder, you might be thinking, “our users don’t post anything illegal.”)
But Internet platforms don’t need Section 230 because they want to host illegal content. (In fact, they don’t want to host illegal and other harmful content because they know it drives users and advertisers away.) They need Section 230 to host any content that could get them sued, even if that lawsuit is meritless and would ultimately fail in court. Even defending against a bad, destined-to-fail lawsuit can cost tens of thousands of dollars under current law. That cost skyrockets into the hundreds of thousands, or even millions, of dollars range if a company has to pay to defend itself through an entire lawsuit, even if the company ultimately wins.
For Internet platforms — especially the new, small, and niche platforms — the implications are clear: hosting any kind of user content becomes a lot riskier. Even if your users create and share things that are clearly legal, one aggrieved individual threatening a lawsuit could be devastating, and several lawsuits over user content would be ruinous. That means fewer places on the Internet where users can create and share content. And it means more user content being removed from the platforms that are large enough to withstand those litigation costs. For digital entrepreneurs, that would make it harder to share content and build an audience.
Even if the court only considers the narrow question of whether Section 230 protects platforms when they recommend user content, content creators could face a very different Internet without recommendation engines. While criticisms about “the algorithm” are prevalent from users on every platform, many creators see engagement and build audiences because platforms are able to recommend their content to users who will find it relevant and interesting. That’s especially important for anyone who creates specific or niche content; a platform’s recommendation engines can help bring people to you and the content you create and share based on whether they follow and interact with similar content from other creators.
The Supreme Court is set to hear arguments in the case in February, meaning it could rule early next summer. Whichever way the court goes, the next Congress is already poised to take up Section 230 and content moderation issues again. If you’re interested in learning more about and staying up to date on this and other key policy issues impacting digital entrepreneurs, sign up to join our Digital Entrepreneur Project.
Engine is a non-profit technology policy, research, and advocacy organization that bridges the gap between policymakers and startups. Engine works with government and a community of thousands of high-technology, growth-oriented startups across the nation to support the development of technology entrepreneurship through economic research, policy analysis, and advocacy on local and national issues.
