• by Wendy Davis  @wendyndavis, August 22, 2024

The anonymous app Yolo, which allegedly promised that it would unmask harassers, must face a lawsuit by family members of teens who were bullied, a federal appeals court ruled Thursday.

In the ruling, a three-judge panel of the 9th Circuit Court of Appeals said Section 230 of the Communications Decency Act didn't immunize Yolo from liability over claims that it misrepresented its practices.

The ruling reversed U.S. District Court Judge Fred Slaughter's order dismissing the case. Slaughter, who presides in the Central District of California, ruled that Yolo was protected by Section 230 -- a 1996 law that broadly immunizes web companies from lawsuits over content created by users, including posts that are defamatory or harassing.

The appellate judges wrote that even if Yolo was immune from liability over the content of the posts, the company could still be sued for allegedly falsely advertising that it would reveal identities of people who violated the terms of service by posting abusive content.

“Yolo repeatedly informed users that it would unmask and ban users who violated the terms of service,” Circuit Judge Eugene Siler wrote in an opinion joined by Judges Carlos Bea and Sandra Ikuta. “Yet it never did so, and may have never intended to.”

The judges noted that Yolo could still ultimately prevail at trial, adding that the company might argue that its statements regarding unmasking weren't promises to the plaintiffs, but were instead warnings to users.

The ruling comes in a dispute dating to 2021, when family members of Carson Bride and other cyberbullying victims brought a class-action complaint against Yolo, a former Snapchat extension that enabled users to anonymously message each other.

Bride committed suicide in 2020 after being harassed on Yolo. 

“On the night of his death, Carson’s web search history shows that he was searching how to reveal Yolo usernames,” the complaint alleges.

The complaint against Yolo also included products liability claims -- essentially that Yolo was dangerously defective due to its design.

The appellate panel sided with Yolo over those products liability allegations, writing that they were centered on the content of users' posts, and therefore covered by Section 230.

“Plaintiffs’ product liability claims attempt to hold Yolo responsible as the speaker or publisher of harassing and bullying speech,” Siler wrote, adding that claims that attempted to impose liability based on Yolo's failure to moderate content were foreclosed by Section 230.

That part of the decision could prove significant in a separate legal battle -- the closely watched class-action lawsuit by teens against Meta, Google, Snapchat and TikTok. That complaint includes claims that the tech companies' products are dangerously defective due to their design.

The mixed ruling comes just two months after the 9th Circuit sided against Meta Platforms in a separate battle over the extent of Section 230 immunity.

In that case, the appellate court said Oregon resident Christopher Calise and Nebraska resident Anastasia Groschen could attempt to prove that Meta violated its terms of service by allegedly failing to police fraudulent ads placed by third parties.

Meta had argued that it was protected by Section 230, but the appellate court said Section 230 wouldn't apply to claims that Meta broke its contract with users by violating its own terms of service, which allegedly included a promise to moderate third-party ads.

As with the decision involving Yolo, the appellate judges said it wasn't clear whether Meta's terms of service actually created an enforceable contract -- meaning that Meta could still prevail in the lawsuit.

Regardless of the ultimate outcome of the lawsuits, the 9th Circuit decisions appear to give plaintiffs who want to sue tech companies a workaround to Section 230, according to Santa Clara University law professor Eric Goldman.

“Section 230 is losing its structural integrity in the 9th Circuit,” Goldman says.

He adds that even without Section 230 the tech companies may still ultimately defeat the claims, but that doing so would likely require additional litigation.