The Communications Decency Act (CDA) of 1996 is truly a gift that seems to keep on giving to those benefiting from it – but also, to its opponents.
That’s because such as it is, Section 230, it turns out, can be bypassed – at least according to a New York judge. One way to do that is by arguing a “negligent design” theory, which is what is happening now in a lawsuit filed against, among others, social sites accused of “radicalizing” the shooter in the 2022 Buffalo massacre.
A lawsuit originally brought before the New York State Erie County Supreme Court on behalf of one of the victims, Celestine Chaney, lists MEAN LLC, Vintage Firearms, RMA Armament, but also Alphabet (Google, YouTube), Reddit, et al, as plaintiffs.
The lawsuit relies heavily on the concept of legal “negligence” – alleging that the plaintiffs played “critical roles” in facilitating the mass shooting.
And while some observers apparently have no issue with accusing arms manufacturers of playing such a role per se – the fact Google and Reddit have also been brought up has ruffled some feathers.
Not least now, when a New York trial judge has refused to dismiss the lawsuit, including the portions against them.
After all, isn’t Section 230 there to cover them from liability for third-party content, in any scenario? Not exactly, and this is where the “negligence” angle is getting fitted into the evolving story of this controversial and outdated piece of legislation.
In short, lawyers have been looking for ways to circumvent Section 230 by alleging both scale and use of “negligent design.” Regardless of who the trend “hits” at one time, the argument against is that anyone could be next, and that liability protections “promised” by the CDA – should a legal precedent be accepted – become effectively null and void.
Regarding the particular lawsuit in question, the judge is reported to have opted for allowing the plaintiffs’ case to proceed.
The part of the decision that relates to Section 230 reads that the plaintiffs “set forth sufficient facts with regard to each defendant to allege viable causes of action under a products liability (i.e., negligence) theory.”
Moreover, the judge found that the complaint is “sufficient to allege viable causes of action against each of the social media/internet defendants.”
“The social media/internet defendants may still prove their platforms were mere message boards and/or do not contain sophisticated algorithms thereby providing them with the protections of the CDA and/or First Amendment,” the judge stated.
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