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)

Apple è responsabile per i danni prodotti da una sua “malicious app” oppure è protetta dal safe harbour ex § 230 CDA?

Eric Goldman ci notizia di e ci dà il link alla sentenza di appello del 9 circuito 27.03.2024,  No. 22-16514, Hadona Diep v. Apple .

Dismissed le azioni “counts I (violation of the Computer
Fraud and Abuse Act), II (violation of the Electronic Communications Privacy
Act), III (violation of California’s Consumer Privacy Act), VI (violation of
Maryland’s Wiretapping and Electronic Surveillance Act), VII (additional
violation of Maryland’s Wiretapping and Electronic Surveillance Act), VIII
(violation of Maryland’s Personal Information Protection Act), and X (negligence)
of the complaint”.

Invece il  § 230 CDA non protegge da azioni basate sulle leggi statali proconsumatori nè da altra come comncorrenza sleale:

<<The claims asserted in counts IV (violation of California’s Unfair
Competition Law (“UCL”)), V (violation of California’s Legal Remedies Act
(“CLRA”)), and IX (liability under Maryland’s Consumer Protection Act
(“MCPA”)) are not barred by the CDA. These state law consumer protection
claims do not arise from Apple’s publication decisions as to whether to authorize
Toast Plus. Rather, these claims seek to hold Apple liable for its own
representations concerning the App Store and Apple’s process for reviewing the
applications available there. Because Apple is the primary “information content
provider” with respect to those statements, section 230(c)(1) does not apply. See
Carafano v., Inc., 339 F.3d 1119, 1124–25 (9th Cir. 2003)
(examining which party “provide[d] the essential published content”)>>.

Nemmeno queste azioni sonio impedite da patti su Limitation of liability (anche se qui di non interesse)

La sospensione dell’account Twitter è coperto dal safe habour ex § 230 CDA (con una notazione per il diritto UE)

Distr. Court of california 23 agosto 2023, Case No. 23-cv-00980-JSC., Zhang v. Twitter, rigetta la domanda dell’utente Twitter per presenza del safe harbor.

Regola ormai pacifica tanto che viene da cheidersi come possa uin avvocato consugliuare la lite (nel caso però Zhang aveva agito “representing himself”)

Qui segnalo solo la (fugace) illustazione del motivo per cui T. non è il fornitore delle informaizonie  e quindi ricorre il requisito di legge

<<Second, Plaintiff seeks to hold Twitter liable for decisions regarding “information provided by another information content provider”—that is, information he and the third-party user, rather than Twitter, provided. Plaintiff’s argument Twitter is itself “an information content provider” of the third-party account holder’s content within the meaning of Section 230(f)(3) is misplaced. (Dkt. No. 53 at 21-22.) Section 230(f)(3) defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”

Plaintiff appears to argue Twitter’s placement of information in “social media feeds” renders it an information content provider.

Not so. “[P]roliferation and dissemination of content does not equal creation or development of content.” Kimzey v. Yelp! Inc., 836 F.3d 1263, 1271 (9th Cir. 2016); see also Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1174 (9th Cir. 2008) (finding Section 230 immunity applies where the interactive computer service provider “is not responsible, in whole or in part, for the development of th[e] content, which comes entirely from subscribers and is passively displayed by [the interactive computer service provider].”)>>.

Si veda la corrispondente disposizione del digital services act, art. 6 reg. ue 2022/2065, e le tante sentenze  emesse in Italia ex art. 16 e 17 d. lgs 70/2003.

(notizia e link alla sentenza dal blog del prof. Eric Goldman)

Non c’è responsabilità di Amazon per la vendita di nitrato di sodio usato poi per suicidio

Interessante pronuncia (in un tragica fattispecie) da parte di West. Dist. di Washington at Seattle 27 giugno 2023, CASE NO. C23-0263JLR, Mccarthy v. Amazon:

<<the Sodium Nitrite was not defective, and that Amazon thus did not owe a duty to warn…the Sodium Nitrite’s warnings were sufficient because the label identified the product’s general dangers and uses, and the dangers of ingesting Sodium Nitrite were both known and obvious. The allegations in the amended complaint establish that Kristine and Ethan deliberately sought out Sodium Nitrite for its fatal properties, intentionally mixed large doses of it with water, and swallowed it to commit suicide….the risk associated with intentionally ingesting a large dose of an industrial grade chemical is also obvious…In this case, the danger was particularly obvious because the Sodium Nitrite “was not marketed as safe for human consumption or ingestion,” and appears to have been categorized as “Business, Industrial, and Scientific Supplies”…
given Kristine and Ethan’s knowledge regarding the dangers of ingesting Sodium Nitrite as well as the general warnings provided on the bottle and the obvious dangers associated with ingesting industrial-grade chemicals, the court concludes that the Sodium Nitrite’s warnings were not defective. Amazon therefore had no duty to provide additional warnings regarding the dangers of ingesting Sodium Nitrite…
even if Amazon owed a duty to provide additional warnings as to the dangers of ingesting sodium nitrite, its failure to do so was not the proximate cause of Kristine and Ethan’s deaths…Kristine and Ethan sought the Sodium Nitrite out for the purpose of committing suicide and intentionally subjected themselves to the Sodium Nitrite’s obvious and known dangerous and those described in the warnings on the label. Plaintiffs do not plausibly allege that better warnings from Amazon would have discouraged Ethan and Kristine from ingesting sodium nitrite>>.

L’aver tolto le recensioni non aiuta gli attori, ai quali viene oppostao con successo il safas harbour ex § 230 CDA, p. 19 ss.

(brano citato tratto dal post del prof. Eric Goldman nel suo blog)

Ancora sul safe harbour ex § 230 CDA: ma questa volta addirittura nella lite Prager University v. Google

Arriva di fronte ad una corte statale la lite Prager University c. Google: Corte di appello dello stato di california, 6th appellate district, 5 diembre 2022, H047714).

Passate decisioni nella stessa lite acquisirono notorietà per essere diventate preecedenti invocati in numerose sentenze successive.

Prager Univ. fa parte del movimento MAGA (Make America Great Again) e pare diffonda disinformazione, che google censura.

La censura però è sia contrattualmente rpevista che non sindacabile dal §230 CDa (e’ il primo aspetto quello più interessante).

Solo due passaggi significativi riporto:

<<Prager’s contention that defendants are themselves an information content provider—in that they developed algorithms used in determining whether to restrict access to Prager’s videos—does nothing to defeat section 230 immunity. Prager pleads no facts from which defendants’ use of algorithms would render them providers of information content. What Prager alleges is the use of “an automated filtering algorithm that examines certain ‘signals’ like the video’s metadata, title, and the language used in the video. The algorithm looks for certain ‘signals’ to determine if rules or criteria are violated so as to warrant segregation in Restricted Mode.” To the extent that an automated filtering algorithm is itself information, defendants of course created it; what is also apparent from Prager’s pleaded facts, however, is that defendants have not “provided [it] through the Internet or any other interactive computer service” within the meaning of section 230(f)(3), to Prager or anyone else…

Prager cites no authority for the proposition that algorithmic restriction of user content—squarely within the letter and spirit of section 230’s promotion of content moderation—should be subject to liability from which the algorithmic promotion of content inciting violence has been held immune…

Prager’s claims turn not on the creation of algorithms, but on the defendants’ curation of Prager’s information content irrespective of the means employed: it is not the algorithm but Prager’s content which defendants publish (or depublish). To the extent Prager’s claims principally rest on allegations that defendants violated a duty under state law to exercise their editorial control in a particular manner, defendants are immune under section 230 from the claims Prager brings in this suit>>.

E poi:

<<The Murphy court, and others, have held that the CDA foreclosed liability where plaintiffs have identified no enforceable promise allegedly breached…Prager’s contractual theories are barred because they are irreconcilable with the express terms of the integrated agreements….

the written contracts governing Prager’s relationship with defendants—limited to YouTube’s Terms of Service (YouTube TOS) and Google LLC’s AdSense Terms of Service (AdSense TOS), which the trial court judicially noticed without objection— contain no provision purporting to constrain defendants’ conduct as publishers…

Though consistent with Prager’s assertion that YouTube makes public-facing representations giving the impression that it voluntarily filters the content on its platform using a discrete set of neutral policies, the Community Guidelines in no way purport to bind defendants to publish any given video, or to remove a video only for violation of those guidelines….

As with the Community Guidelines, Prager conflates user guidelines with provider duties. Prager does not explain how defendants’ illustration in the guidelines of unsuitable content that “will result in a ‘limited or no ads’ monetization state” confers on users a contractual right that all other user content be monetized. At most, the Advertiser-friendly content guidelines permit users to “request human review of [monetization] decisions made by [defendants’] automated systems.” Thus, neither the Community Guidelines nor the Advertiser-friendly guidelines conflict with or limit defendants’ express reservation of rights….

the CDA may permit a state law claim concerning publishing activity based on a specific contractual promise, section 230 notwithstanding; this does not mean that the CDA requires an express contractual reservation of publishing discretion as condition precedent to section 230 immunity from state law claims>>

(notizia della sentenza e link alla stessa dal blog del prof. Eric Goldman)