Justice Clarence Thomas Details the Potential Dangers of Granting Sweeping Immunity to Internet Platforms

On Tuesday, October 13, 2020, the United States Supreme Court denied a petition for a writ of certiorari in Malwarebytes, Inc. v. Enigma Software Group USA, LLC. The high court appeal stems from a case wherein Malwarebytes used software to block its users from accessing products from its competitor, Enigma. The district court rejected Enigma’s claim based on immunity provided by Section 230 of the Communications Decency Act. The Ninth Circuit panel reversed the district court’s ruling, stating that “[i]mmunity under that section does not extend to anticompetitive conduct.” Supreme Court Justice Clarence Thomas penned a concurring opinion to the denial of certiorari, suggesting that a review of Section 230 of the Communications Decency Act may be warranted in an appropriate case.

Section 230 contains two subsections protecting computer service providers from some civil and criminal claims. The first provision “ensures that a company. . . can host and transmit third-party content without subjecting itself to the liability that sometimes attaches to the publisher or speaker of unlawful content.” The second provision “enables companies to create community guidelines and remove harmful content without worrying about legal reprisal.” Justice Thomas noted that Section 230 was enacted by Congress against specific background legal principles, namely Stewart v. Dutra Constr. Co., 543 U.S. 481 (2005), whereby publishers and speakers are held to higher standards than distributors, and Stratton Oakmont Inc. v. Prodigy Services Co., 1995 WL 323710 (Sup. Ct. NY, May 24, 1995), whereby distributors are liable only when they know (or constructively know) that content is illegal. Section 230(c), however, “suggests that if a company unknowingly leaves up illegal third-party content, it is protected from publisher liability. . . and if it takes down certain third-party content in good faith, it is protected.”

Justice Thomas first took issue with the fact that “[c]ourts have discarded the longstanding distinction between ‘publisher’ liability and ‘distributor’ liability.” Justice Thomas noted that Congress expressly imposed distributor liability in Section 502 of the Communications Decency Act, thereby finding it “odd to hold, as courts have, that Congress implicitly eliminated distributor liability in the very Act in which Congress explicitly imposed it.” He further noted that Section 230 was enacted just one year after the Stratton Oakmont ruling such that “one might expect Congress to use the same terms Stratton Oakmont used.” Finally, Justice Thomas noted that if Congress wanted to eliminate publisher and distributor liability, it could have created such categorical immunity by using unambiguous and specific language, as it did in Section 230(c)(2).

Justice Thomas then addressed the fact that “[c]ourts have also departed from the most natural reading of the text by giving Internet companies immunity for their own content.” He continued on to criticize decisions broadly interpreting Section 230(c)(1) that “eviscerated the narrower liability shield Congress included in the statute.” Justice Thomas finished his critique of the jurisprudence concerning Section 230 by looking at cases in which the statute was used “to protect companies from a broad array of traditional product-defect claims.” Justice Thomas found flaws in these product-defect claims cases since “courts, filter[] their decisions through the policy argument that ‘Section 230(c)(1) should be construed broadly,’ [Force v. Facebook, Inc., 9324 F.3d 53, 64 (CA2 2019)],  giv[ing] defendants immunity.”

In conclusion, Justice Thomas argued that curtailing the sweeping immunity of Section 230 granted by courts “would not necessarily render defendants liable for online misconduct. It simply would give plaintiffs a chance to raise their claims in the first place.” He reasoned that “States and the Federal Government are free to update their liability laws to make them more appropriate for an Internet-driven society.”

Additional Reading

Time to Take Up Immunity for Internet Platforms, High Court Justice Warns, Courthouse News Service (October 13, 2020)

Denial of Writ of Certiorari in Malware Bytes, Inc. v. Enigma Software Group USA, LLC (592 U.S. ___ (2020))

Order and Amended Opinion in Enigma Software Group USA, LLC v. Malwarebytes, Inc., No. 17-17351 (9th Cir. 2019)

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