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‘Major Gap’ in Protections

Section 230 Shields Apple From Third-Party App’s Fraud, Says Amicus Brief

The plaintiffs who seek to hold Apple liable for the fraud involving Toast Plus, a third-party app on the App Store, can’t “circumvent” Section 230’s protections through creative pleading, said a amicus brief filed Tuesday in the 9th Circuit U.S. Court of Appeals (docket 22-16514) by NetChoice, the Electronic Frontier Foundation and the Software & Information Industry Association in support of Apple’s request to affirm the district court’s dismissal of the case. The Chamber of Progress and ACT | The App Association also signed onto the brief.

The plaintiffs are two App Store users who sought to “recast Apple’s publication activities through its App Store by interpreting a general statement about the safety of its service to be a legally binding guarantee” that all third-party content published on the App Store is 100% safe, said the brief. But consistent with a “large body of decisions” in 9th Circuit and other circuits, plus “a healthy dose of common sense,” the district court properly said general statements don’t “constitute a legally binding assumption of all liability for all third-party content hosted on the App Store,” it said.

The plaintiffs “are now doubling down in this appeal,” said the brief. They ask the 9th Circuit “to equate a statement” that the App Store as a whole is safe and trusted to actually be a clear and affirmative claim about the quality and safety of all content on the App Store, it said. But as the 9th Circuit already explained in its 2009 decision in Barnes v. Yahoo, Section 230 preempts publication-related claims unless there’s a legal duty distinct from the publisher conduct at hand, it said.

Apple “disclaimed any duties arising from third-party content,” including the Toast Plus app at issue in the case, and Section 230 thus bars the plaintiffs’ claims here, said the brief. Recognizing that “flaw,” the plaintiffs contend Apple’s disclaimer is prohibited by law because it engaged in fraud by publishing the harmful third-party app, it said. But they provide no evidence beyond a claim that Apple didn’t ensure the quality and safety of the Toast Plus app, it said. They ignore that Apple “expressly disclaimed such assurances,” it said.

The “real thrust” of the plaintiffs’ claims is that they were harmed by third-party content published on the App Store, said the brief. “The only way Apple could have met its alleged duties would be to monitor and remove third-party content,” it said. But here, too, the 9th Circuit “made clear that these legal obligations are preempted by Section 230,” it said, citing the 2019 decision in v. City of Santa Monica.

The 9th Circuit shouldn’t permit the plaintiffs “to create a major gap in Section 230’s protections by taking a claim otherwise focused on the publication of third-party content and then tacking on a very broad statement from the defendant that is far attenuated from the claim at issue,” said the brief. The only alternative would be for app store providers to either avoid making even general statements about the trust, safety and security of their services, or “meticulously review every such statement for litigation risk,” it said. Permitting such claims “to proceed to later, more costly stages of litigation” would thwart Congress’ goal of promoting a vibrant, innovative internet and e-commerce “ecosystem,” it said.

Consumers and other online users, app developers and the broader internet ecosystem “will be harmed if providers of app stores and other digital distribution services are essentially forced by the threat of vexatious litigation to meticulously review all third-party content before distribution,” said the brief. The result would be fewer options and less competition in the digital marketplace, plus “disproportionate harm to marginalized voices that rely on app stores and third-party services to distribute content,” it said.