Il safe harbour ex § 230 CDA opera anche verso la responsabilità contrattuale (ma non tutti sono d’accordo)

L’appello californiano del 6° distretto 3 giugbno 2024, Lasdy Freethinker c. Google,    chiarisce che non conta la qualificazione della domanda ma la sostanza.

Nel caso, la domanda allegava un inadempimento di Google/Youtube per aver ospitato video di maltrattamenti di animali, contrariamente alla sua policy dichiarata.

<<As these cases demonstrate, merely because a cause of action is framed and
labeled as a breach of contract or related claim does not remove it from the scope of section 230 immunity. Instead, a court must evaluate a cause of action to determine whether it seeks to treat an interactive computer service as a publisher or speaker of third-party information. That may include assessing what a plaintiff’s claim “amounts to” or identifying the gravamen of a complaint and the nature of the alleged injurious conduct, notwithstanding the plaintiff’s labels and characterization of its own causes of action.
(See, e.g., Murphy, supra, 60 Cal.App.5th at p. 30 [“gravamen” of plaintiff’s complaint “seeks to hold Twitter liable, not for specific factual representations it made, but for enforcing its Hateful Conduct Policy against her and exercising its editorial discretion to remove content she had posted”]; see also, Roommates, supra, 521 F.3d at pp. 1170–1171 [“any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230”].) It may also include assessing the sufficiency of a cause of action as pleaded from a contract standpoint,
including whether it is based on general policies or a personal, well-defined, enforceable promise. (See, e.g. Prager, supra, 85 Cal.App.5th at pp. 1035–1036; Murphy, supra, 60 Cal.App.5th at p. 29; Barnes, supra, 570 F.3d at p. 1108.).

Consistent with this precedent, we conclude that Lady Freethinker’s causes of
action, despite being framed as contract-related claims, seek to treat Google as a
publisher or speaker of third-party information, and are therefore barred by section 230>>

In effetti il tenore della norma non permette restrizioni interpretative. Da vedere se l’insegnamento valga pure per noi (art. 6 DSA reg. UE 2022/2065).

Ma l’appello del 9 circuito in data 4 giugno 2024, Calise v. Meta, No. 22-15910, la pensa all’opposto.

<<Plaintiffs assert two contract claims: breach of contract
and a breach of the covenant of good faith and fair dealing
(the contract claims).4 These both rely on the same
“enforceable promises” allegedly made by Meta to
Plaintiffs—the same duty. Barnes controls here. As we
explained, the difference between contract claims and a tort
such as defamation is that the latter “derive[s] liability from
behavior that is identical to publishing or speaking:
publishing defamatory material.” Barnes, 570 F.3d at 1107.
“Promising,” on the other hand, “is different because it is not
synonymous with the performance of the action promised.”
Thus, Meta’s “[c]ontract liability” would “come not
from [its] publishing conduct, but from [its] manifest
intention to be legally obligated to do something.” Id. This
is because “[c]ontract law treats the outwardly manifested
intention to create an expectation on the part of another as a
legally significant event.” Id. “That event generates a legal
duty distinct from the conduct at hand.” Id.5 To the extent
that Meta manifested its intent to be legally obligated to
“take appropriate action” to combat scam advertisements, it became bound by a contractual duty separate from its status as a publisher. We thus hold that Meta’s duty arising from its promise to moderate third-party advertisements is
unrelated to Meta’s publisher status, and § 230(c)(1) does not apply to Plaintiffs’ contract claim>> , pp. 18-19.

(notizia e link dal blog di Eric Goldman)