Gonzalez v. Google: What’s at stake for Wikipedia?
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Update from Rebecca MacKinnon, Vice President of Global Advocacy at the Wikimedia Foundation:
On 18 May 2023, the US Supreme Court issued its ruling on Gonzalez v. Google LLC. The case marked the first time that the Court considered Section 230 of the Communications Decency Act, which protects website hosts — including the Wikimedia Foundation — from lawsuits for the content submitted by users.
The Wikimedia Foundation welcomes the Court’s ruling on Gonzalez v. Google. Volunteer contributors to Wikipedia and other Wikimedia projects rely on Section 230 to share reliable, well-sourced information with people around the world. By declining to interpret Section 230, the Court’s ruling leaves decades of well-established precedent intact. This protects both freedom of expression for millions of people around the world and the Foundation’s ability to host volunteer-run free knowledge projects. Thanks to today’s ruling, Wikimedia volunteers can continue to share free knowledge globally as they have been doing for more than two decades.
While we are pleased by today’s outcome, other potential threats to Section 230 protections for Wikipedia and other Wikimedia projects loom on the horizon. This post will be updated with additional updates and analysis from the Foundation soon.
Written by the Wikimedia Foundation’s: Jacob Rogers, Associate General Counsel, and Leighanna Mixter, Senior Legal Manager.
(Special thanks to our legal fellow, Raji Gururaj, who assisted with research on this case.)
The Wikimedia Foundation’s ability to host Wikipedia hangs in the balance in a Supreme Court case against YouTube. Our friend-of-the-court brief explains how.
In 2015, U.S. student Nohemi Gonzalez was tragically killed in Paris during a series of coordinated terrorist attacks. In Gonzalez v. Google LLC, her family is suing YouTube for showing recruitment videos from the Islamic State (ISIS) terrorist organization to its users. Gonzalez v. Google is a crucially important case because it will be the first time that the Supreme Court will consider Section 230 of the Communications Decency Act, which protects website hosts from lawsuits for the content submitted by users.
As host of Wikipedia and other volunteer-run free knowledge projects, the Wikimedia Foundation strongly condemns terrorist violence. Terrorism advocacy and recruitment are not tolerated on Wikimedia platforms. But as we explain in our amicus brief, filed with the United States Supreme Court on 19 January, 2023, the Foundation supports Google’s perspective on the law because it protects our ability to host Wikipedia and other volunteer-run, free knowledge projects. Section 230 is one of the key laws that has supported internet hosting for over two decades, including protecting the Wikimedia projects.
The plaintiff argues the amplification of terrorist videos was done through sections of Google’s platform’s interface, which algorithmically identify what videos a person might want to watch next based on their viewing history. Google has been clear throughout the case that it “abhors terrorist content,” takes considerable steps to remove it, and has gotten increasingly more effective at removing it through the years. Nevertheless, some users have been successful at getting inappropriate videos to slip through Youtube’s safeguards. Such videos can appear in people’s recommended videos, even when YouTube staff do not yet have specific knowledge that the platform is hosting them. Gonzalez, the plaintiff, argues that YouTube recommendations, and indeed any recommendations by a website hosting user-generated content, should constitute a separate action by the website owner that can make them liable for publishing content like these ISIS recruitment videos.
Wikimedia’s position on Gonzalez v. Google
In our amicus brief we explained to the Court that — despite the tragic background of the case — siding with Gonzalez would create significant problems for the future of the internet. These problems would not be limited to Google or other large for-profit tech companies that rely on targeted advertising for revenue, but also for the Wikimedia projects, which are run by a global cohort of volunteers and supported by a nonprofit Foundation funded by charitable donations.
A ruling in favor of Gonzalez threatens to make it impossible to host Wikipedia and other websites like the Wikimedia projects — or any website designed to accept some types of content but not others (like accepting encyclopedia articles and not spam).
We made two major arguments in our submission:
1. Wikipedia and the other Wikimedia projects depend on Section 230. Section 230 is still just as important today as it was in the early 2000s for the Wikimedia projects, as well as for similar nonprofit, small, or medium size websites. We identified a number of very basic activities that the arguments put forth by Gonzalez would threaten, focusing primarily on choices of software and interface design that affect the way that content on the Wikimedia projects is arranged, curated, and organized.
Even basic functions such as the development of anti-spam filters, the MediaWiki software (open source software to create Wiki websites), or the design of Wikipedia pages in a way that help volunteers arrange content in a consistent, readable way could be enough to make the website host liable for content under the legal theory that Gonzalez advances. It may not even be possible to host articles that link to other relevant articles, since this could be considered a “recommendation.”
We also highlighted to the court that Section 230 is uniquely helpful because it allows organizations like the Wikimedia Foundation to dismiss cases early on in legal proceedings. Without that benefit, the costs of even a small amount of bad faith litigation could be extremely expensive. We fear that if this happens, powerful individuals and organizations would be able to file lawsuits to effectively censor content and potentially even disrupt the Wikimedia movement’s operations entirely. Hopefully, this will help the Court to understand that if it narrows Section 230 protections, it could negatively impact the Wikimedia projects.
2. Section 230 plain language protects curation and recommendation systems that benefit everyone. We also made a textual argument about how the Court should interpret words like “publisher” in Section 230. This is particularly important in current American legal practice. While Gonzalez tries to distinguish “recommendations” from “publishing,” we argue that does not make logical sense. This is because Gonzalez’s definition of a recommendation is so broad that it covers nearly any attempt to arrange, curate, or organize content. However, without arrangement and curation, content on the internet would be disorganized, full of spam and irrelevant information, and useless to readers. Nobody would be able to find what they were looking for. It simply is not possible to publish things without also organizing and curating what you are publishing in some fashion.
Why Section 230 matters
Section 230 is a part of a US law passed in 1996 that set up regulations for who is and is not legally responsible for what is on the Web. According to Section 230, the host of a website is not treated as the publisher of anything uploaded by the website’s users and, therefore, cannot be sued over what users upload. There are some exceptions, such as those concerning US federal crimes or intellectual property (for instance, copyright is instead covered by the Digital Millennium Copyright Act), but they tend to either have their own legal mechanisms or to come up extremely rarely.
In 2017, when lawmakers were first considering adding an exception to Section 230, we wrote a blog post explaining the importance of Section 230 to the existence and protection of Wikipedia and other Wikimedia projects. In brief, Section 230:
- Gives website operators like the Wikimedia Foundation the ability to safely host all the myriad community contributions, discussions, and moderation work,
- Creates consistency for hosting websites in the United States, rather than having to worry about compliance with 50 different state laws, and
- Protects the ecosystem of smaller websites and nonprofits that do not have the money and staffing of the biggest internet companies.
Conclusion
Section 230 is a bedrock law that has been around since 1996, and is one of the key protections that allows the Wikimedia Foundation to host the Wikimedia projects. In filing this amicus brief, we hope to clarify for the Court why it is in the public interest that Section 230 continues to protect the ability of website hosts like the Foundation to curate, organize, and recommend content.
The Gonzalez family deserves everyone’s sympathy and respect. We recognize that they are unlikely to have had Wikipedia in mind when filing their lawsuit. But if the court finds in their favor, unanticipated harm will likely include Wikipedia and other nonprofit, educational websites.
We are hopeful that the Court will agree with us that Section 230 should be preserved, supporting the ability of smaller or nonprofit platforms to operate, and reflecting a strong commitment by the United States to uphold the value of free speech online. A ruling against Gonzalez will help to protect the ability of Wikimedia users to share free knowledge — not just in the United States, but around the world.
If you would like to learn more, you can read the Electronic Frontier Foundation’s (EFF) summary of the importance of Section 230, and you can follow the case and read briefs submitted by many organizations on it at SCOTUSBlog.
A special thank you to Ben Kleine and his team at Cooley, LLP (Kathleen Hartnett, Alexander Kasner, Kelsey Spector, and Harrison Park), who served as our outside counsel to help draft the brief.
