BlogReforming 230 Immunity: Will removing the exemption of liability for tech result in a groundswell of litigation?

In the third of a five-part blog series drawn from Carrie Goldberg’s congressional testimony at a hearing entitled: “Holding Big Tech Accountable: Targeted Reforms to Tech’s Legal Immunity,” we explore a common concern about Section 230 reform: flooding the courts.

A question that often comes up (yes, it was first question that congress asked!) when discussing 230 reform is: won’t the courts be flooded with lawsuits? No. Removing the exemption of liability for tech will not result in a groundswell of litigation.

In discussing Section 230 reform, some people erroneously claim changes to 230 will “create liability” for tech companies. This is incorrect. Removal of immunity will not make defendants liable for online harms. Instead, it will just mean plaintiffs have a chance to prove their claims in the first place.

To put this in perspective: they make unfathomable piles of money from collecting our personal data and selling ads to us. It’s okay if these companies get hauled to court once in a while for the awful harms they cause. It’s the only way they can be incentivized to keep their products responsible. And just like every other industry, they’ll simply get liability insurance to cover the costs of litigation. Getting rid of CDA 230 wouldn’t make platforms responsible for removing speech that would otherwise be protected. It would just make them responsible for the abuses they create.

Fears that tech companies will be overwhelmed with litigation are unfounded and, frankly, reveal the fearmonger’s unfamiliarity with how litigation works. Here’s why we need not fear a stampede to the courthouse!

Removing Section 230 immunity will not flood the courts. Here’s why:

• The onus is on the plaintiff to prove liability

Like all litigation, the onus is on the plaintiff to prove the merits of the case and the plaintiff will sometimes fail. The process begins with plaintiffs needing to satisfy the harsh pleading standards required of federal cases per Iqbal and Twombly.  The plaintiff must have an actual cause of action to plead and then must plausibly plead each element.  For instance, if pleading negligence, the plaintiff must plead that there’s a relationship between the plaintiff and the defendant, that the relationship created a special duty on defendant, that defendant breached that duty, that plaintiff suffered an injury, and that the defendant’s breached duty was the proximate cause of the injury.

• Basic economics deter low injury cases

Proving liability is an arduous, laborious, years-long and expensive undertaking for an attorney. Economic drivers separate the wheat from the chaff.  Personal injury cases are almost always taken on contingency. Discovery, expert witnesses, depositions, and thousands of hours of lawyer time adds up. Attorneys working on contingency – with their own profit and loss concerns – cannot take cases unless the upside justifies the risk of losing litigation. Consequently, frivolous and low injury cases are eliminated before they’re ever filed.

• Having facts that satisfy all elements for a cause of action is surprisingly difficult

Weak cases where there is nominal injury and weak facts about content moderation will be dismissed at as early a stage as if there were immunity. For instance, somebody being called a “bitch” on Twitter would never succeed with a negligence claim and it would be dismissed at no earlier a stage than the 12(b)(6) motion to dismiss stage used by tech companies presently. Take another example of the often catch-all cause of action but with a very high bar, intentional infliction of emotional distress. The elements of this claim require a plaintiff plead a defendant acted intentionally or recklessly, the defendant’s conduct was extreme and outrageous, the defendant’s act is the cause of distress, and the plaintiff suffers severe emotional distress as a result. Let’s say a politician sues Facebook for intentional infliction of emotional distress for removing a post that encourages violence. Facebook could easily argue that its decision to moderate its content was neither extreme nor outrageous nor that it caused emotional distress, let alone severe emotional distress.

• Nothing will be procedurally different for defendants without Section 230 because rarely do they rely on Section 230 alone.

Without Section 230 immunity, nothing would procedurally change for tech companies in getting weak cases dismissed. Tech companies usually make initial (pre-discovery) motions to dismiss based on a variety of grounds, including failure to state a claim, Section 230 immunity, outside the statute of limitations, lack of jurisdiction, and anti-SLAPP. Poor cases will be dismissed at this early stage and before the rigors of discovery.

• Anti-SLAPP laws are a faster and harsher deterrent for Defendants to get weak and constitutionally protected speech-based claims dismissed.

Plaintiffs bringing frivolous content-based cases like the two described above (negligence claim for being called a bitch on Twitter and IIED claim for a platform removing inciting content) are far more deterred by Anti-SLAPP laws than section 230.  Strategic Lawsuits Against Public Participation (SLAPP) provide an accelerated and even profitable way for defendants to get flimsy cases thrown out.  Thirty-four states have anti-SLAPP laws.  Written into many Anti-SLAPP statutes is a condensed briefing schedule, and the requirement that courts prioritize these cases.   Anti-SLAPP statutes create a two-prong test. A defendant must show they’re being sued for constitutionally protected speech and then the burden passes to the plaintiff who must show a likelihood of success of winning on the merits of their case. Because Anti-SLAPP motions occur before discovery and it’s up to the court’s discretion as to whether to allow limited discovery in these motions, plaintiffs are already at a huge disadvantage because the second prong requires a mini trial wherein plaintiffs must provide evidence that they can meet the elements of the cause of action but without the plaintiff having the benefit of discovery.  The biggest source of deterrent is the required fee-shifting.  A plaintiff who loses their anti-SLAPP motion must pay the defendant’s legal and fees. Legal fees typically add up to six figures in Anti-SLAPP motions.

The two examples discussed above – the negligence case based on rude behavior and the IIED case about a moderation decision – if brought against an Interactive Computer Service (ICS) would both most certainly be dismissed in an Anti-SLAPP motion and the plaintiff could expect to be forced to pay punishing legal fees for both their own attorney and the defendant’s.

Read: The Media Will Be All Right, A plaintiff’s lawyer’s lament on how anti-SLAPP will be an obstacle for defendants with or without Sullivan – Carrie Goldberg for the Knight First Amendment Institute

• Uninformed plaintiffs sue anyway

Section 230 immunity already does not deter pro se litigants with truly frivolous cases.  Folks hellbent on suing will sue with or without the immunity and likely will not even learn of Section 230 immunity until their case is already being dismissed.

• Proving psychological injuries is challenging

The majority of cases against Big Tech involve psychological – and not physical injuries.  Proving a psychological injury can be more challenging than a physical one. While there are photographs, x-rays, and courtroom three-dimensional models that aid in proving physical damages, often victims of emotional distress keep the full extent of their injury private.  The victim is responsible for describing their emotional injury and eliciting empathy from the jurors who may well blame them. Defendants have an easier time sowing doubt in a jury, claiming the victim is at fault or is lying or exaggerating the harm or that earlier or later traumas caused the anguish. Because the claims are far more difficult to prove, lawyers are disincentivized from taking anything but the most egregious cases.

• Will the ICS really be paying for claims itself?

All responsible businesses have liability insurance. It would be shocking if a user-facing platform did not have an insurance policy to deal with lawsuits. I suspect the biggest impact of removing Section 230 immunity will play out in the world of insurance.