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Posted by on Aug 23, 2019 in Publications |

A Tale of Two Websites: How the CDA Shields Liability for Dangerous Content

A Tale of Two Websites: How the CDA Shields Liability for Dangerous Content

“Just like tech companies that have struggled to tackle misinformation on their platforms, Amazon has proven unable or unwilling to effectively police third-party sellers on its site.”

This was the sub-heading for an article published today in the Wall Street Journal about third-party sellers on Amazon, which concluded that Amazon was listing 4,152 items for sale on its site that had been declared unsafe by federal agencies, were deceptively labeled, or were outright banned by federal regulators – including at least 2,000 listings for toys and medications that posed a health risk to children. A synopsis of the article is below:

Coincidentally, the Ninth Circuit issued an opinion earlier this week on a case where a mother sued the website that facilitated the sale of fentanyl-laced heroin to her son, resulting in his death. As described in the opinion, the defendant, Ultimate Software, created a social networking website called the “Experience Project,” which allowed users to interact anonymously with one another in various online communities and groups, including groups where the sale of illicit drugs, such as heroin, took place. The link to this case is below:

So what does Amazon facilitating the sale of unsafe products and a website facilitating the sale of heroin have in common? Both appear to be actions that are protected by Section 230 of the Communications Decency Act. While an oversimplification, this law basically mean you cannot legally hold a website operator (such as Amazon and Ultimate Software – and like Yelp, Youtube, and Facebook) responsible for third-party information that is posted on its website unless the operator “is responsible, in whole or in part, for the creation or development of the information.”

In short, if Youtube doesn’t make a video that is posted on its website, it is not legally responsible for the content of that video. It’s certainly more nuanced and complicated then that, which is why so many legal opinions and articles have been written about it, but that’s the law in a nutshell.

Why does the law allows this? The simple answer is that the modern internet could not exist without this protection. Imagine if Facebook was legally responsible for every false post or if Yelp had to pay out money every time someone posted a negative review – neither company would be long for this world as they would be sued into financial oblivion within a matter of weeks and, indeed, no such companies could exist. There would be no social media, no online communities, and no easy exchange of ideas and multimedia content. So it was decided that it was a greater good to allow these types of online services to exist because they promote and facilitate the right to free speech in a way that has never been possible prior to the advent of the internet.

The dark side of this protection, however, is that it means incidents like third-parties selling banned, dangerous toys to children online and anonymous online communities selling illegal drugs often leave the victims without any real remedy. By that, it means that if a bad actor sells a lead-laced toy through Amazon’s website, the poisoned child has no remedy against Amazon and must instead try and obtain relief from an anonymous third-party seller that may be across the other side of the globe and untouchable by the American court system.

Of course, even if website operators may not have a legal responsibility for how their services are used, they nonetheless have an incentive to police their services to a certain extent, whether it is to avoid bad publicity or to avoid losing customers who no longer trust their services. However, again, such changes after-the-fact are of little use to the victims who have already been injured by users of these services.

Whether the benefits are worth these costs is a question without a simple answer. However, there is still a simple takeaway for consumers (aside from being careful about who you’re buying from online): if a person uses a website to injure you – whether it is to post something defamatory about you or to sell you a dangerous product – as a general rule, your remedy is likely with the person, not the website.

TLDR: The CDA is a double-edged sword that protects the internet as we know it while also protecting those that would misuse it. As a result, consumers must be sophisticated in their efforts to obtain relief from the misuse of online services, as rarely will it be as simple as suing the website that facilitated – but had no direct involvement with – the injury to you.