GONZALEZ v. GOOGLE, CHALLENGES THE ASSIGNMENT OF LIABILITY WITHIN THE MODERN INTERNET

Author: Missy Dieckman-Meyer, Associate Editor

The internet has become one of the most vital tools for communication, entertainment, and sharing information within today’s society.[i] More than half of the global population is connected to the internet, and over 90 percent of Americans have access to the internet.[ii] These large numbers are continuously growing and indicate society’s transformation from a once analog network into a digitalized network.

The digitalization of communication, information, and entertainment has led to the development of Artificial Intelligence. Artificial Intelligence is a smart computer system that lives online and can simulate and place human intelligence within machines.[iii] This digitalized technology is coded with advanced features that employ algorithms that make predictions to curate content to social media users based upon the accumulations of their electronic data.[iv]

Algorithms are electronically written codes that use machine learning technology, such as AI.[v] These electronic codes are written to carry out tasks, such as managing the flow of content through active recommendations as well as negative shadow bans, while mediating interactions with information through the likes and comments of users to improve content discoverability.[vi] This sortation of content is prompted by a user’s likes, comments, views, and shares which allows AI to better understand what digital content to recommend to individualized users.[vii]

The mediation of information within algorithms relies upon the interests of each user because once they show a particularized interest, then they are directed to other similar content within their recognized interest categories.[viii] These categorized interests are created with the aim of increasing awareness within the digital society, while incentivizing interactions within curated digital markets.[ix] The algorithmic curation of content towards user interests allows social media platforms to more organically filter through large amounts of content and deliver the content that is potentially more “interesting” to users at the detriment of posts which are deemed irrelevant or low quality.[x] By default, social media algorithms take the reins of determining what content to deliver to users based on their digital behavior.[xi] Thus, the effects of algorithms can be considered both positive and negative, as the use of AI within social media and online inevitably influences and shapes content interactions within our digitalized society.[xii]

An example of the influential algorithmic effects within social media can be seen within the current case, Gonzalez v. Google, which is currently before the Supreme Court of the United States.[xiii] The case discusses the distribution of content being presented on media platforms by third party users and how the effect of the content may result in harmful unintended consequences.[xiv]

In 2015, Nohemi Gonzalez lost her life in Paris, France during a terrorist attack.[xv] Following the attack that took her life, ISIS, a well-known foreign terrorist organization, took to YouTube to claim responsibility for the attack as well as many other attacks that occurred afterward.[xvi] This video was shared online and was algorithmically presented to the Gonzalez family after the death of their daughter.[xvii] The observance of this video prompted the Gonzalez family to bring suit against Google, which owns YouTube, arguing that Google assisted ISIS in the spread of its terroristic messages by enabling the videos to be published on YouTube.[xviii]

While the content published by ISIS was devastating, YouTube only removed portions of the content without de-activating all of ISIS’s accounts.[xix] YouTube’s responsive conduct is exemplary of the common role that other media conglomerates engage, as they are relieved from liability for content posted by third party users and must only assess the potentially obscene or harmful content that is voluntarily reported.[xx] However, even when the ‘harmful’ content is reported and deleted, the content is subject to being quickly regenerated.[xxi] These established roles of passivity provided Google with a platform to argue that it cannot be held liable for the user-generated content under the Communications Decency Act (CDA).

The CDA immunizes providers of interactive computer services against liability arising from content created by third parties.[xxii] This law was enacted to promote the free exchange of information and ideas over the internet, and to encourage voluntary monitoring of offensive or obscene material.[xxiii] While this law does not outwardly deter harmful online speech, it allows for free speech to persist under reasonable non-drastically offendable circumstances.[xxiv] Thus, when the offensive and obscene speech is published online, the CDA immunizes media providers from liability for the content published by its users and places the burden of reporting obscene material upon its users who voluntarily monitor the content being published.[xxv]

Voluntary monitoring consists of observing and reporting obscene and harmful digital content to the media platform on which the content was published.[xxvi] These observation reports are relevant on large media platforms, such as YouTube and Google, as the platform management systems may not become aware of the offensive or obscene material due to the large amounts of material artificially sorted, distributed, and suppressed by the implemented algorithmic functions.[xxvii] Therefore, voluntary monitoring is encouraged upon interactive digital sites to suppress obscene material, as well as provide the media platforms with a limited liability scapegoat that will relieve them of all liability for otherwise unlawful or defamatory messages that they did not edit or delete.[xxviii]

This immunization provision protecting media providers is published within section 230 of the CDA.[xxix] The CDA’s limitations regarding imputable liability allows interactive media platforms to provide the public access to shared content without directly creating or developing the content.[xxx] This immunity designation allows platforms, such as YouTube and Google, to be seen as neutral providers by which third-parties post upon, protecting them from scrutiny. [xxxi] However, this long established immunization of platforms may be exceeding the acts intentions. Because the CDA’s enactment preceded the internet’s more recent growth spurt, the CDA’s liability provision may be outdated, by providing too much protection to platforms that steer people toward harmful content.[xxxii]  

The liability shield enacted by the CDA has fueled the fortunes of YouTube, Google, and various other internet giants.[xxxiii] However, these internet moguls are now facing a long-anticipated day of reckoning in front of the Supreme Court which is set to analyze algorithmic abuse employed by media platforms.[xxxiv] This day of reckoning arises from the advancement of technology and the in-advancement of the law surrounding algorithms which have been commonplace within the internet for decades and may be drastically altered in the near future to allow for a free-flowing stream of content that is not individualized and would hold media platforms liable for published content.

Therefore, while the implementation of algorithms may seem like a helpful and mostly harmless tool, these coded computer processing services can gravely impact the content that individuals see online.[xxxv] The ability of these algorithms to curate content regardless of obscenity hinders society as much as it helps direct content to potentially interested viewers.[xxxvi] These benefits and hinderances are being challenged before the United States Supreme Court and may change the internet as we know it by altering how algorithms share information while altering the degree of liability assigned to internet platforms for the content that is published on their sites, regardless of whether the source is a third-party publisher.[xxxvii] Thus, the ruling in Gonzalez v. Google has the potential to revolutionize online user engagement and indefinitely alter the landscape of the internet.[xxxviii]

[i] Statista Research Department, Internet usage in the United States – Statistics & Facts, Statista (Oct. 18, 2022), https://www.statista.com/topics/2237/internet-usage-in-the-united-states/#topicHeader__wrapper.  

[ii] Id.

[iii] Mike Kaput, What is Artificial Intelligence for Social Media?, Marketing Artificial Intelligence Institute (April 18, 2022), https://www.marketingaiinstitute.com/blog/what-is-artificial-intelligence-for-social-media.

[iv] Id.

[v] See generally, Maria Alessandra Golino, Algorithms in Social Media Platforms: How social media algorithm influence the spread of culture and information in the digital society, Institute for Internet & the Just Society (April 24, 2021), https://www.internetjustsociety.org/algorithms-in-social-media-platforms; Brent Barnhart, Everything you need to know about social media algorithms, Sprout Blog (Mar. 26, 2021), https://sproutsocial.com/insights/social-media-algorithms/.

[vi] Maria Alessandra Golino, Algorithms in Social Media Platforms: How social media algorithm influence the spread of culture and information in the digital society, Institute for Internet & the Just Society (April 24, 2021), https://www.internetjustsociety.org/algorithms-in-social-media-platforms.

[vii] Id.

[viii] See generally, Id.

[ix] See generally, Id.

[x] Maria Alessandra Golino, Algorithms in Social Media Platforms: How social media algorithm influence the spread of culture and information in the digital society, Institute for Internet & the Just Society (April 24, 2021), https://www.internetjustsociety.org/algorithms-in-social-media-platforms.

[xi] Barnhart, supra note v.

[xii] Id.

[xiii] Gonzalez v. Google, SCOTUSblog, https://www.scotusblog.com/case-files/cases/gonzalez-v-google-llc/.

[xiv] Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021); see also Filippo Menczer, Here’s exactly how social media algorithms can manipulate you: Evidence shows that information is transmitted via “complex contagion”, The Present (Oct. 7, 2021), https://bigthink.com/the-present/social-media-algorithms-manipulate-you/.

[xv] Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021).

[xvi] Id.

[xvii] See generally, Id.

[xviii] Id.

[xix] Gonzalez v. Google, 2 F.4th 871, 882 (9th Cir. 2021).

[xx] See generally, Communications Decency Act of 1996, 47 U.S.C. §230. §223.

[xxi] See generally, Gonzalez v. Google, 2 F.4th 871, (9th Cir. 2021).

[xxii] Id. at 882. (citing Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008)).

[xxiii] Gonzalez, 2 F.4th at 882. (citing Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2008)); Communications Decency Act of 1996, 47 U.S.C. §230. §223.

[xxiv] See generally, Gonzalez, 2 F.4th at 882; Communications Decency Act of 1996, 47 U.S.C. §230. §223.

[xxv] Gonzalez, 2 F.4th at 888. (citing see generally Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir. 2016)); Communications Decency Act of 1996, 47 U.S.C. §230. §223.

[xxvi] See generally, Id. at 888.

[xxvii] See generally, Alessandra Golino supra note v.

[xxviii] Gonzalez, 2 F.4th at 887.

[xxix] Gonzalez, 2 F.4th at 947.

[xxx] See generally, Gonzalez, 2 F.4th at 893 (citing Kimzey v. Yelp!, Inc., 836 F.3d 1263 (9th Cir. 2016)).

[xxxi] Gonzalez, 2 F.4th at 893, 952 (citing Kimzey v. Yelp!, Inc., 836 F.3d 1263 (9th Cir. 2016)).

[xxxii] John D. McKinnon, Google Case Before High Court Could Reshape Internet Economy: Tech Industry fears legal rulings could weaken the liability shield that allowed internet platforms to flourish, Wall Street Journal (Oct. 30, 2022 9:00 am ET), https://www.wsj.com/articles/google-case-before-high-court-could-reshape-internet-economy-11667091945; See generally, Gonzalez, 2 F.4th at 948.

[xxxiii] John D. McKinnon, Google Case Before High Court Could Reshape Internet Economy: Tech Industry fears legal rulings could weaken the liability shield that allowed internet platforms to flourish, Wall Street Journal (Oct. 30, 2022 9:00 am ET), https://www.wsj.com/articles/google-case-before-high-court-could-reshape-internet-economy-11667091945.

[xxxiv] See generally, Id.

[xxxv] See generally Barnhart, supra note v.

[xxxvi] See generally, Alessandra Golino supra note v.

[xxxvii] See generally, McKinnon supra note xxxiii.

[xxxviii] Sascha Brodsky, How a Supreme Court Ruling Could Radically Change the Internet, Lifewire (Oct. 17, 2022) https://www.lifewire.com/how-a-supreme-court-ruling-could-radically-change-the-internet-6749994.