YouTube Recommendations Not Protected by Sec. 230: Gonzalez Plaintiffs

Websites sending users unsolicited recommendations and creating links to content on their own platforms aren’t protected under Section 230 of the Communications Act because the information they're offering wasn’t created by a third party, argued the petitioners in the initial brief filed Wednesday with the U.S. Supreme Court in Gonzalez v. Google.

YouTube "selected the users to whom it would recommend ISIS videos based on what YouTube knew about each of the millions of YouTube viewers, targeting users whose characteristics suggested they would be interested in ISIS videos,” said the filing. A YouTube thumbnail “provides a user the URL that YouTube itself created for the video, which is not content ‘created by another.'”

The case before the high court, Gonzalez v. Google stems from the 2015 murder of Nohemi Gonzalez during the ISIS-planned terrorist attacks in Paris. Gonzalez's family argued Google is liable for the attacks because it owns YouTube, which hosted videos used by ISIS for recruitment. The lower court ruled Section 230 protected Google because the ISIS videos were third-party content, a finding the 9th U.S. Circuit Court of Appeals upheld. The 9th Circuit heard and ruled on Gonzalez alongside the similarly situated Twitter v. Taamneh (see 2211300073), and SCOTUS is hearing both.

The Gonzalez plaintiffs want to narrowly argue that YouTube’s specific actions here aren’t covered by Section 230, without looping in the practices of all search engines and websites, said Michael Carroll, faculty director of the American University Washington College of Law, in an interview. Most courts have viewed Section 230 broadly, so arguing it doesn’t apply in limited circumstances is “pretty much the argument they have to take,” he said. SCOTUS could see arguments that would apply to broad swaths of the internet as creating a “gray area” about what content websites are liable for, Carroll said. The plaintiffs said the law shouldn't be interpreted too broadly or too narrowly. "The terms of section 230 represent a deliberate effort by Congress to strike a balance between limiting the liability of covered entities and preserving the traditional state authority over civil and criminal matters," the filing said.

For Section 230 protections to apply, a defendant has to show the claim against it treats it as a publisher, the information at issue comes from a party other than the defendant, and at the time it engaged in the action in question, the defendant was acting as a user of an interactive computer service. In this instance, Google doesn’t meet any of those requirements, said the filing.

The lower courts erred in ruling that YouTube’s recommendations and links don’t amount to information created by Google, the filing said. “A URL is information, the location of a file on the Internet and in the server where it is stored,” said the filing. YouTube’s recommendations are also distinct from the results of a search engine because YouTube creates the URLs, the filing said. A user search on YouTube yields links created by YouTube, while a search using Google yields third-party links, the plaintiffs said.

That a notification “is about a third party does not convert” that notification “into information ‘provided by’ another party,” said the filing. Simultaneously, sending out recommendations doesn’t mean YouTube is a publisher, the filing said. “Recommending something (such as a book) is different from being the creator of that thing,” the filing said. “A favorable restaurant review is not a chef, and an academy award is not a movie director.”

YouTube isn’t acting as a provider or user of an interactive computer service because it recommends videos based on what it thinks users would like to see, the plaintiffs said. “The text of section 230 makes clear that the overall intent of the law is to enable the user to determine what information he or she will receive from the website, not vice versa,” the filing said. “Whether disseminated material was requested by the recipient affects the availability of the section 230(c)(1) defense,” the filing said.