By Janelle M. Lewis, Attorney and Business Strategist
Google v. Gonzalez Oral Arguments Creates Uncertainty About Liability that affects the Business Strategies of Internet Platform Providers
Following the February 21st, 2023 Oral Arguments of Google v. Gonzalez (“Oral Argument”) before the U.S. Supreme Court, there is a great deal of uncertainty as to whether internet platform providers can maintain their immunity if they make targeted recommendations of information provided by another information content provider. The question before the Court – as presented by both parties – is: “Whether Section 230…immunizes interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limits the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information.”
Distilled down, the issue before the Court that creates uncertainty for Internet Platform Providers is whether they are protected from legal liability for algorithmic/targeted recommendations of third party content to users of its platform. The possible future outcomes from the decision could have significant and substantive impacts on the current business strategy of internet platforms that engage in activities that could be considered providing “algorithmic/targeted recommendations.”
Section 230(c)(1) – Protection for “Good Samaritan”
Section 230(c)(1) establishes that a provider or user of an interactive computer service has legal immunity from the content posted by “internet content providers” or third-parties. Known as the “Protection for ‘Good Samaritan’” the idea behind the Section 230(c)(1) policy is to limit the liability of internet platform providers who engage in traditional editorial functions. Such functions are defined as the blocking and screening of content considered offensive material of content posted by third-parties.
One way to manage these future outcomes is to identify the potential scenarios that could occur by analyzing the interplay between legal and non-legal uncertainties using the Legal Based Scenario Planning tool I created and introduced March 2020. The purpose of this Legal Based Scenario Planning tool is to engage in formulating a plan that is robust to different scenarios.
Legal Based Scenario Planning Tool – Navigate Uncertainties that Impact Strategic Issues
Similar to Scenario Planning, Legal Based Scenario Planning is generally used to: 1) identify both key legal and non-legal strategic issues; and 2) identify key legal and non-legal trends and uncertainties from which to filter out the trends in order to focus and prioritize on the uncertainties. Also like Scenario Planning, constructing scenarios is at the heart of Legal Based Scenario Planning. Constructing four possible future scenarios that are mutually exclusive; writing the potential future scenarios; and reflecting on the current business strategy to examine the robustness of the strategy across all the different scenarios are the steps – which help facilitate the decision-making process in the context of uncertainty.
Legal Uncertainties Resulting from the Oral Arguments that Impact Internet Platform Provider Business Strategies: Immunity from Liability
The current question before the Court is whether engaging in any activity other than traditional editorial functions means that the internet platform provider loses their immunity from liability for the content posted by third-parties. Loss of immunity protection under Section 230(c) can result is a lack protection from civil litigation related to content posted on their platforms by third-parties.
According to the recent oral arguments, the uncertainty that arose that create real consequences for business strategy is the issue of Liability. Should Section 230(c)(1) protect internet platform providers from liability when they “choose” to publish third-party content via an algorithm created to target a specific group who would not have seen the content had it not been for the targeted recommendations of the internet platform provider? How far will Section 230(c)(1) be taken and what impact will its reach have on the business strategies of internet platforms providers? How much protection from liability will internet platform providers be provided as it relates to their activities around third-party content?
Non-Legal uncertainties Resulting from Section 230: Capability to Maintain Business Activities (Value Chain Analysis)
The non-legal uncertainties that arise from the Oral Arguments is the ability of internet platform providers to carryout business activities if their vulnerability to liabilities increases? This specific non-legal uncertainty directly affects the internet platform providers’ Value Chain. Questions that become uncertainties resulting from the Oral Arguments relate to how limited liability protections affect the primary and secondary activities of the value chain that impact on the internet platform providers profit margins.
Examining the interplay between the Legal uncertainties and Non-Legal uncertainties: The Heart of Legal Based Scenario Planning.
Examining the interplay between the legal uncertainties of liability protections and the non-legal uncertainties of the internet platform providers capabilities to maintain current business strategy with increased liabilities. Constructing four possible future scenarios is the heart of the Legal Based Scenario Planning tool in order to test the Robustness of the current business strategy. In this case, drafting four possible future scenarios that are mutually exclusive and reflecting on the current business strategy to examine the robustness of the strategy across all the different scenarios is a tool that facilitates the business strategic decision-making process when legal and non-legal uncertainties are involved. It provides decision-makers of internet platform providers with the opportunity to identify potential outcomes and how to respond strategically.