One widely adopted principle of internet policy in leading internet markets is the immunity from liability granted to ISPs, websites, apps and other online platforms as mere neutral intermediaries in respect of third-party content they host or distribute, as well as liability protection for third-party content they may decide to block, edit or delete. For many, this principle is seen as the cornerstone of the modern and prosperous internet of today.

With Gonzales and Taamneh, two ongoing cases that are yet again challenging platforms’ immunity in the US, the country’s supreme court is considering whether platforms’ ‘recommendations’ of content to users amount in themselves to platform-developed content, making platforms effective publishers and not just neutral intermediaries, and therefore potentially liable for such content.

In previous cases, US courts have made restrictive interpretations of this immunity in relation to third-party content, attempting to establish in each individual situation whether platforms were neutral ‘intermediaries’ of third-party content for which they retained immunity protection, or else effective ‘developers’ of content with potential liability.

So far, in most of these cases, immunity was either clarified or lifted altogether, with courts making a distinction between immunity for third-party-only content and liability where one of the following was at play:

• platform-generated content alongside third-party content;
• a platform’s actively re-publishing, in full or in part, third-party content;
• a platform’s failure to warn users against known risks around third-party content;
• a platform’s failure to show good faith when deleting third-party content; and
• platform-induced third-party content.

Is liability for recommending content about to be added to the above list?