I'd Bet Ted Cruz Will Start Supporting Section 230 Once He Realizes He's On The Hook For Parler's Legal Expenses

from the put your money where your mouth is, ted dept

Senator Ted Cruz now loves Parler, the Twitter alternative that a bunch of Trump fans mistakenly believe won’t moderate content. We’ve already shown that’s false. However, there’s another issue with Parler that some are calling out — which is that you run a risk if you agree to that site’s user agreement, because of the following that is buried as #14 on the user agreement:

You agree to defend and indemnify Parler, as well as any of its officers, directors,
employees, and agents, from and against any and all claims, actions, damages, obligations,
losses, liabilities, costs or debt, and expenses (including but not limited to all attorneys fees)
arising from or relating to your access to and use of the Services. Parler will have the right
to conduct its own defense, at your expense, in any action or proceeding covered by this
indemnity.

Now, as we’ve discussed in the past, many social media sites have indemnity clauses, though they’re often much more limited (also, in looking now, I’m pleasantly surprised that it looks like a few have removed indemnity clauses altogether — I can’t find one in Twitter or Tumbler’s current terms for example). We’ve also discussed why people should be wary of many indemnity claims.

Parler’s indemnity clause was first called out by @TheWolfLawayer on Twitter, and then later by The Verge’s Editor in Chief, Nilay Patel, who called it a “reverse 230 clause.”

I wouldn’t quite call it a “reverse 230 clause” and I think that some of the screaming about this clause is a bit overblown (again, many other platforms have similar indemnity clauses, though many are at least a bit more limited to situations where the users actually violated some law).

However, this clause should make Ted Cruz and every other Parler user huge supporters of Section 230. Now, we already know that Cruz hates Section 230, has misinterpreted it frequently, and has supported calls to get rid of it, falsely believing that this will somehow stop content moderation from being used against Nazis or something.

But here’s the thing: since Ted Cruz is now on the hook if anyone sues Parler over Ted Cruz’s speech on that platform… well, then Ted Cruz might want to become a big supporter of Section 230 right quick. Because it will be Section 230 that gets such a lawsuit tossed out quickly and relatively inexpensively. Without Section 230 — even if the case is frivolous — Parler’s legal fees (by which, thanks to this legal agreement, we mean Ted Cruz’s legal fees) would be much, much higher, because the lack of 230 would create a procedural mess, which would likely extend any court case greatly, and rack up Cruz’s legal fees.

This is not to suggest that anyone should or would file such a lawsuit against Parler, but seeing how many misdirected cases we’ve seen filed against sites like Twitter over users’ speech on that platform, it wouldn’t be surprising if Parler eventually faces similar such lawsuits. And, if that’s the case, any of its users (including Cruz) will then be in deep shit if they don’t have 230 helping to reduce their legal liability.

So, Ted, maybe drop the nonsense and the lying about 230, and recognize: Section 230 protects you too, especially given your new favorite social media’s excessive terms of service.

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Companies: parler

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Comments on “I'd Bet Ted Cruz Will Start Supporting Section 230 Once He Realizes He's On The Hook For Parler's Legal Expenses”

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17 Comments
Anonymous Anonymous Cowardsays:

Thank Parler for the road map.

Let’s see, five steps to an attitude reversal on ? 230.

  1. Ted Cruz and/or any other congresscritter posts something actionable.
  2. Someone sues Parler (under the deep pocket theory) for that post.
  3. Parler racks up big legal fees and sends Ted Cruz and/or other congresscritter a huge bill.
  4. Ted Cruz and/or other congresscritter throws hissy fit.
  5. ? 230 is ensconced in its current form until another unread politician dislikes another’s speech.

Dear Ted,

Please start posting your diatribes. Given your history it won’t be long until this road map is put to work.

Sincerely

More Reasonable People

Anonymoussays:

many other platforms have similar indemnity clauses, though many are at least a bit more limited to situations where the users actually violated some law

Do you have an example of that? Every click-through agreement I’ve seen that mentions indemnity is as broad as this one. (The Free Software Foundation’s written agreement for copyright transfer does say "Developer is not obliged to defend FSF against any spurious claim of adverse ownership?"?the only time I’ve seen any such thing.)

Uriel-238says:

Re: You know this raises another question

This being the golden age of haxxorz, I wonder if Parler’s databases are secured under the level of encryption and access-control that is typical for large corporations entrusted with that kind of data (which is to say, not enough.)

What’s better than a honeypot? A honeypot with plausible deniability.

rmhartmansays:

Re: Re: Re: Re:

but it does make the poster responsible for his postings, not the web site.
of course, the site has some obligations it has to live up to in order to qualify for this protection. It’s the difference between a publisher and a platform. The really big problem with 230 is the single phrase “otherwise objectionable”, which lets the site exercise far more “editorial judgement” in what they remove than they are supposed to and still qualify for the protection.

rmhartmansays:

Doesn't anybody fact check these things here?

It’s easy to read:
https://legal.parler.com/documents/useragreement.pdf

The word “indemnify” does not appear in the entire document.

Paragraph #14 is:
4. Parler cannot waive any right to enforce this User Agreement, unless it does so
expressly in writing. No waiver of any part of this User Agreement, will be a further or
continuing waiver of that part or any other part, and no failure to enforce any part of his
User Agreement will be deemed a waiver of any kind.

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