AI Recommender Systems and First-Party vs. Third-Party Speech

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As artificial intelligence (AI) continues to transform the digital landscape, the distinction between first-party and third-party speech has emerged as a crucial legal issue. Recent court rulings have begun to shape how AI-driven recommendations, particularly those involving algorithms and AI models like large language models (LLMs) and diffusers, are treated under the law. These rulings have significant implications for tech companies, content creators, and users alike, as they redefine the boundaries of liability and free speech in the age of AI.

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Understanding First-Party vs. Third-Party Speech

In the context of online platforms and AI, first-party speech refers to content that is created or directly curated by the platform itself. This can include algorithms that recommend content, curate user experiences, or even generate text and media based on user inputs. Third-party speech, on the other hand, encompasses content generated by users of the platform, for which the platform traditionally assumes no legal liability, thanks in large part to Section 230 of the Communications Decency Act (CDA).

Section 230 has been a cornerstone of internet law in the United States, providing immunity to online platforms from being held liable for content posted by their users. However, as AI algorithms become more sophisticated and capable of generating or curating content, the line between what constitutes first-party and third-party speech is becoming increasingly important. 

The Case of Anderson v. TikTok Inc.

A pivotal case that highlights this distinction is Anderson v. TikTok Inc, No. 22-3061 (3d Cir. 2024). In this case, decided on August 27, 2024, the Third Circuit Court considered whether TikTok's algorithmic recommendations could be classified as the company's own expressive activity, thus making it first-party speech. The plaintiff, Anderson, argued that TikTok’s algorithm had recommended harmful content that led to significant emotional distress and sought to hold the company liable.

The court held that TikTok’s algorithm, which curates and recommends videos, constitutes TikTok's own expressive activity or first-party speech. This was a groundbreaking decision because it distinguished between TikTok simply hosting user-generated content (third-party speech) and TikTok actively recommending content through its algorithms (first-party speech). As a result, the court concluded that Section 230 of the CDA did not protect TikTok from liability for its own recommendations. Anderson’s claims were allowed to proceed, setting a precedent that platforms could be held accountable for their algorithmic outputs.

Supreme Court’s Take: NetChoice, LLC v. Paxton

In a similar vein, the Supreme Court addressed the issue of algorithmic speech in NetChoice, LLC v. Paxton, 598 U.S. ___ (2023), decided on June 30, 2023. The Court examined whether social media companies' use of algorithms to curate content on their platforms could be considered a form of protected speech under the First Amendment.

The Supreme Court ruled that algorithms and curated content provided by social media companies are indeed considered the companies' own speech and thus are protected by the First Amendment. This ruling aligned with previous legal interpretations that software and algorithmic outputs can be considered forms of speech. It further solidified the notion that when a company actively selects or curates content, it is engaging in expressive conduct that is protected by the First Amendment.

Implications for AI Recommender Systems and AI Models

These rulings have far-reaching implications, particularly for the use of AI recommender systems and advanced models like LLMs and diffusers. As AI becomes more integrated into digital services, the distinction between hosting content and curating it is increasingly relevant. AI recommender systems that personalize user experiences by selecting and displaying specific content may now be seen as engaging in first-party speech. This categorization could potentially expose companies to greater liability for the outputs of their AI systems.

For instance, if an AI model generates harmful or misleading information and that content is classified as first-party speech, the company behind the AI could be held responsible in the same way TikTok was held accountable for its algorithmic recommendations. This presents a significant shift from the current understanding where AI outputs are often viewed as neutral or as part of third-party speech protections.

Navigating the Generative Native World

As AI technology continues to evolve, so too will the legal frameworks that govern it. The decisions in Anderson v. TikTok and NetChoice, LLC v. Paxton mark a new chapter in the regulation of AI-driven content and algorithms. These cases highlight the necessity for tech companies to reevaluate their legal strategies and the way they deploy AI technologies.

For companies developing AI and machine learning models, the takeaway is clear: there is a growing need to be cautious about how algorithms and AI models are used to curate and recommend content. While the protections afforded by Section 230 remain substantial, they may not extend to cases where a platform’s algorithms are deemed to be engaging in expressive conduct that amounts to first-party speech.

Future Considerations

The debate over first-party versus third-party speech in the context of AI is likely to intensify as more cases reach the courts. Companies using AI to enhance user engagement or automate content curation will need to stay informed of these developments to navigate potential liabilities effectively. As the legal landscape continues to shift, balancing innovation with legal accountability will be crucial for the continued growth and trust in AI technologies.

The recent court rulings represent a significant development in how AI and algorithms are perceived under the law. By acknowledging AI-driven outputs as first-party speech, courts are setting a precedent that could reshape the responsibilities and protections of tech companies in the digital age. As AI continues to play a central role in shaping online experiences, understanding and adapting to these legal changes will be essential for companies looking to thrive in this evolving landscape.

Further read