A recent ruling by the Ninth Circuit Court of Appeals in Lemmon v. Snap provides a reminder that while Section 230 of the Communications Decency Act provides broad immunity to the owners and operators of websites and mobile apps, that immunity is not without limits.
As a refresher, Section 230 provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Because of the broad immunity that website owners have enjoyed in the 25 years since its enactment, these have been hailed as the 26 words that created the Internet.
The District Court Action
The case centers around the “Speed Filter” that Snap offered on its popular Snapchat messaging app. Users of the app could send a message to their friends, which would display the speed the user was traveling at the point in time that the message was sent.
In May 2017, Jason Davis (age 17), Hunter Morby (age 17), and Landen Brown (age 20) were driving down Cranberry Road in Walworth County, Wisconsin. The boys were traveling at speeds up to 123 MPH. They sped along at these high speeds for several minutes, before they eventually ran off the road and crashed into a tree. Their car burst into flames. All three boys died. Shortly before the crash, one of the boys opened Snapchat to document how fast they were traveling.
In 2019, the parents of two of the boys commenced an action against Snap, the owner and operator of Snapchat, in the United States District Court for the Central District of California. The parents claimed that Snap was negligent in its design of the Speed Filter.
Snap moved to dismiss arguing that the parents had failed to state a claim for negligence and that Snap was in any event immune from suit under Section 230.
Under Ninth Circuit authority, Section 230 immunity from liability exists for “(1) provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.”
In February 2020, without reaching the issue of whether the parents had properly stated a negligence claim against Snap, the district court held that Snap was entitled to Section 230 immunity and dismissed the parents’ claims. The district court held that Section 230 immunity applies where the website merely provides a framework that could be utilized for proper or improper purposes by the user. The district court found that the Speed Filter is a neutral tool, which can be utilized for both proper and improper purposes. The district court reasoned that the Speed Filter is essentially a speedometer tool, which allows users to capture and share their speeds with others.
The district court was guided by the Ninth Circuit’s decision in Dyroff v. Ultimate Software Grp., Inc. In that case, the plaintiff brought an action against an operator of the “Experience Project” website after her son died from a heroin overdose. The website allowed users to register anonymously, recommended users to join certain groups based on the content of their posts and other attributes and sent email notifications when a user posted content to a group. The plaintiff’s son posted in a “heroin-related group” regarding where to purchase heroin, received an email notification regarding his post, and ultimately connected off the site to purchase heroin from a contact he made on the site.
In Dyroff, the plaintiff argued that the website operator should not receive Section 230 immunity because she was trying to hold the website operator liable for its own “content” — namely, the recommendation and notification functions. The Ninth Circuit disagreed. It held that the website operator was immune from liability under Section 230 because its functions, including recommendations and notifications, were content-neutral tools used to facilitate communications.
The Ninth Circuit Decision
On May 4, 2021, the Ninth Circuit issued its decision in the parents’ appeal from the district court’s dismissal of their claims. The Ninth Circuit held that Section 230 immunity does not apply to bar the parents’ negligent design claim against Snap in connection with the Speed Filter.
The Ninth Circuit held that because the parents’ claim neither treats Snap as a “publisher or speaker” nor relies on “information provided by another information content provider,” Snap does not enjoy Section 230 immunity from this suit. Here the Ninth Circuit noted the parents seek to hold Snap liable for its allegedly “unreasonable and negligent” design decisions regarding Snapchat. And such claims rests on the premise that manufacturers have a duty to exercise due care in supplying products that do not present an unreasonable risk of injury or harm to the public.
The Ninth Circuit held that website and app providers continue to face the prospect of liability, even for their “neutral tools,” so long as plaintiffs’ claims do not blame them for the content that third parties generate with those tools.
In recent years, Section 230 immunity has come under increased scrutiny with calls for its reform or repeal. Courts have generally recognized that the language of Section 230 is broadly worded and that the immunity that Congress granted to promote the growth of the Internet should be broadly construed. It remains to be seen whether the Ninth Circuit’s Snap decision reflects a movement away from interpreting Section 230 immunity in broad terms. The decision certainly shows that Section 230 immunity has its limits and that those limits will continue to be tested.