Fourth Circuit’s 230 Meltdown Gives Plaintiffs False Hope–Divino v. Google

Last year, in Henderson v. Source for Public Data, the Fourth Circuit issued a MAGAlicious Section 230 opinion that seemingly trashed 25 years of Fourth Circuit precedent. It was immediately obvious that plaintiffs would widely cite the ruling. However, so far there hasn’t been much uptake by other courts.

In this case, the plaintiffs allege that YouTube engages in discriminatory content moderation, an argument has gone nowhere in court. Having lost on multiple grounds, including Section 230, the plaintiffs asked for reconsideration in light of the Henderson case. The court rejects the request:

In Henderson, the Fourth Circuit examined the plaintiff job seekers’ claims, in the specific context of the FCRA, and concluded that certain of those claims did not seek to treat the defendants as publishers because they concerned the dissemination of information to the plaintiffs themselves (not a third party), the failure to obtain certain information from third parties, and the failure to maintain proper procedures to ensure accurate information—all of which were deemed not to fall within “publisher” functions for purposes of Section 230(c)(1) immunity. While the job seekers’ other claims could implicate publishing functions to the extent they “functionally depend” on the defendants’ dissemination of inaccurate information to a third party, the Fourth Circuit nonetheless found that Section 230(c)(1) immunity did not apply because the defendants were “information content provider[s]” who “made substantive changes to the records’ content that materially contributed to the records’ unlawfulness,” including by reformatting, distilling, and stripping out information and replacing information with defendants’ own created summaries.

There are no such facts in the present litigation, which concerns defendants’ decisions to remove, restrict, or
demonetize plaintiffs’ videos. Indeed, Henderson expressly declined to consider whether CDA Section 230(c)(1) immunity applies when a claim seeks to hold a party liable for a decision not to publish. Moreover, Henderson is not binding on this Court; and while the scope of Section 230(c)(1) immunity is not unlimited, the Fourth Circuit’s narrow construction of Section 230(c)(1) appears to be at odds with Ninth Circuit decisions indicating that the scope of the statute’s protection is much broader.

More evidence that Henderson may create a circuit split. For what it’s worth, two other courts have discussed Henderson and said…

• Bride v. Snap: it’s “unpersuasive”
• Prager v. Google: “Henderson’s narrow interpretation of section 230(c)(1) is in tension with the California Supreme Court’s broader view”

It’s likely the Supreme Court in Gonzalez will moot Henderson by coming up with even more eviscerating interpretations of Section 230. Until then, it’s possible that Henderson only offers false hope to plaintiffs, like so many other bad Section 230 rulings before it.

Case Citation: Divino Group, LLC v. Google, LLC, 2023 WL 218966 (N.D. Cal. Jan. 17, 2023).