Parler, a social media platform, is the latest to file suit against Amazon Web Services (AWS) alleging violations of federal antitrust law and breach of contract. The conflict between AWS and Parler started on January 10, 2021 when AWS suspended Parker from its web-hosting services, effectively taking the site offline, saying it was not confident Parler could properly police its platform regarding content that encourages or incites violence against others. The next day, Parler filed suit in federal court in Washington State arguing that Amazon’s actions illegally favored Twitter.
The emergency suit sought a temporary restraining order to prevent AWS from shutting down Parler’s account and damages in an amount to be determined at trial. The motion was then converted to a preliminary injunction, with the Court only having to determine the likelihood that Parler will ultimately prevail on its claims, and to order AWS to restore service to Parler. On January 21st, the Court denied Parler’s motions holding Parler failed to demonstrate that it is likely to prevail on the merits of any of its three claims needed for a preliminary injunction.
Parler alleges that AWS’s termination of services is “apparently designed to reduce competition in the microblogging services market to the benefit of Twitter,” and therefore violates Section 1 of the Sherman Act. Section 1 of the Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce.” Proving a violation of section 1 requires Parler to show: “(1) the existence of a conspiracy, (2) intention on the part of the co-conspirators to restrain trade, and (3) actual injury to competition.”
While Parler has not yet had an opportunity to conduct discovery, it is unlikely to succeed on the merits of its Sherman Act claim. Parler has submitted no evidence that AWS and Twitter acted together in restraint of trade while AWS has submitted the sworn declaration of an AWS executive explicitly denying the existence of any agreement between AWS and Twitter. AWS alleges that it was well within its rights to suspend Parler for violating its Customer Services Agreement and Acceptable Use Policy which proscribes, among other things, “illegal, harmful, or offensive” use or content, defined as content “that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable.” AWS claims that it repeatedly communicated to Parler its concerns about third-party content that violated its terms, and that Parler failed to respond to those concerns in a timely or adequate manner, giving grounds to AWS for the suspension. Currently, AWS and the court are waiting for Parler to file an amended complaint, with a deadline of February 16th.
Parler’s removal from AWS and the decision by other social media platforms to suspend President Trump’s accounts have sparked debate over regulation of social media. In the past, Twitter and Facebook had been reluctant to censor posts about conspiracy theories and fake news. However, in the last year, Twitter and Facebook have taken significant voluntary steps to combat misinformation, including warnings, reduced circulation and removal, particularly with respect to COVID-19 and President Trump. Some have argued that these actions are infringements on free speech and illustrate inherent bias against conservative voices. However, the decision is perfectly lawful, as the First Amendment prohibits government censorship and does not apply to decisions made by private companies.
Additionally, Section 230 of the Communications Decency Act gives social media platforms broad immunity for what they allow or for what they block. Under that statute, the provider of an “interactive computer service” is immune for acting in good faith to restrict access to material that is excessively violent, harassing, or otherwise objectionable. Therefore, if AWS acted under the Communications Decency Act to shut down Parlor, which its response to Parler’s complaints states it did, its conduct is probably not in violation of antitrust law. However, there have been calls to repeal Section 230 because of accusations of bias and companies not acting in good faith. In such a circumstance, it would be in social media companies’ benefit for more explicit and transparent self-regulation, rather than leaving regulation up to Congress. Only time will tell whether social media companies will continue to self-regulate, as they have been doing, or if the bill to repeal section 230 of the Communications Act passes.