Iain Nash, auteur chez State of Digital Publishing

Many of the biggest online platforms have long argued they aren’t publishers of the content their users upload, merely hosts. The likes of Google, YouTube, Meta and TikTok claim they simply store and display information created by others, so should not be seen as legally responsible for it. But a recent ruling by the Court of Justice of the European Union (CJEU) makes that argument harder to maintain – at least in cases where the platform’s algorithm is deciding which content gets pushed, ranked or amplified. The case relates to Coyote, a French driving assistance company which stores traffic reports submitted by users and redistributes them to the wider network. The question being tested was whether Coyote merely hosts its users’ information, or also controls (and benefits from) how that information is circulated. The significance of this case – brought by the Conseil d’État, France’s highest administrative court and the government’s chief legal adviser – extends far beyond driving apps. It clarifies when a provider may lose the legal right of “intermediary immunity” for the user information it stores and circulates. Traditional book, newspaper and magazine publishers have always been held responsible for their content. A defamatory article generally exposes the publisher to liability, since it chose to make the material available. In contrast, technology companies have been treated as neutral intermediaries – closer to a corner shop stocking newspapers than a publisher producing content, with clear limits to their liability. For these companies, the Coyote judgment is significant because it sharpens the boundary between neutral hosting and algorithmic control. A platform that merely stores user content is likely to remain legally protected. But one that decides, in its own interest, how that content is disseminated may no longer be. One important caveat: as this case is from the CJEU, it does not apply to users in the UK and elsewhere outside the EU. However, it will affect British and international companies that have a significant audience within the EU. So, no technology platform can dismiss the issue simply because it is headquartered outside Europe. What the court decided A hosting provider is protected under Article 6 of the EU Digital Services Act (DSA) if it lacks actual knowledge of illegal content – and then acts expeditiously once notified about it. The question in the Coyote case was whether a service that stores and retransmits user-generated information still counts as a neutral host when its algorithm decides how that information circulates. https://www.youtube.com/watch?v=AZDTEQ5cN38&t=5s A Coyote user explains how the app works. Video: Loic Le Mur. The court concluded that a platform can have no knowledge of a specific message’s content, yet can still have legal responsibility for its dissemination. Where a platform’s algorithm determines – in its own interest – the conditions, manner or priority with which information is disseminated, then the “safe harbour” of being a neutral host falls away. This outcome was anticipated in 2019 by technology law experts Jennifer Cobbe and Jatinder Singh, who argued that algorithmic curation complicated the assumption that platforms are passive, neutral hosts. The ruling does not doom every algorithm. Simple categorisation, such as showing all posts by one user or from the past 24 hours, remains close to traditional hosting. But ranking or promoting content in the platform’s own interest does not. None of this makes these platforms automatically liable. Losing the exemption only opens the door to being sued – claimants must still prove the platform’s conduct actually caused harm. Potential impacts of the Coyote ruling 1. For social media content A social media company may remain protected when it stores user content or displays it in ways that are largely user-directed or chronological. But algorithmic feeds are different. “For You” pages, recommendation systems, trending modules and paid amplification systems all decide what content is shown to which users and in what priority. When that decision is made in the platform’s commercial or service interest, Coyote makes it harder to describe the platform as merely hosting the content. The same reasoning may matter for extreme or graphic material. If a platform simply stores content uploaded by a user, the hosting exemption could still apply. But where a recommender system repeatedly pushes that material to users because it drives engagement, Coyote gives claimants a stronger argument that the platform was not passive. The content does not always need to be unlawful in itself. But claimants would still need to demonstrate both liability and harm. 2. For paid search When a platform sells priority, decides how a sponsored result is displayed, and presents that result to users because doing so serves its own commercial interest, it becomes harder to argue that the platform is merely storing or neutrally indexing third-party information. This matters because online advertising has become a major route for fraud and consumer harm. Following the Coyote ruling, claimants harmed by paid advertisements may have a stronger argument that the harm arose at least in part because the provider sold, ranked and prioritised that information. But they would still need to prove the advert was unlawful, that the platform’s role fell outside immunity, that the promotion caused their financial loss or other harm. 3. In libel cases A newspaper that publishes a defamatory allegation can be liable because it has chosen to publish it. In contrast, a hosting platform where a user makes and uploads such an allegation has not been treated in this way. However, if the platform’s recommender system promotes that post or pushes it into feeds, the CJEU ruling gives claimants a clearer argument that the platform should be held responsible for increasing the audience reach of the allegedly defamatory content. Changing the terrain The Coyote judgment does not abolish hosting immunity – but it does change the terrain. It makes clear that the “safe harbour” argument depends not only on where information came from, but what the provider does with it. The more a platform determines dissemination in its own interest, the harder it is to maintain that it is merely hosting, according to this groundbreaking ruling. And this, remember, holds for international as well as European technology companies. Iain Nash, Associate Director and Senior Lecturer in Artificial Intelligence and Technology Law, Edge Hill UniversityThis article is republished from The Conversation under a Creative Commons license. Read the original article.

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