Page 7 - Kattison Avenue Newsletter - Spring 2026 - Issue 16

Bouck Could Make It Easier to Sue Tech Companies That Provide
Generative AI Tools to Advertisers on Their Platforms

By Asena Baran, Alexander Kim and David Halberstadter

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According to industry leaders, the future of advertising will be from liability for AI-powered advertising on their platforms.
generated by artificial intelligence (AI) and sponsored by tech Section 230 prevents such a tech company from being treated
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companies. For advertisers and social media platforms that as the “publisher or speaker” of third-party content published
serve them, the recent decision out of the Central District of on its platform, unless the company is “responsible, in whole
California in Bouck v. Meta Platforms, Inc., Case No. 25-cv-05194- or in part, for the creation or development” of the content. 3
RS, 2026 U.S. Dist. LEXIS 62626, *2-3 (C.D. Cal. Mar. 24, 2026), In line with Congress’s policy “to promote the continued
carries potential practical implications. Most significantly, development of the Internet,” California courts have confirmed
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Section 230 of the Communications Decency Act may no longer that social media companies are not liable for the “creation or
shield social media platforms from liability for advertising development” of unlawful advertising published by third parties
content produced by the platforms’ generative AI (GenAI) on their platforms, and possess Section 230 immunity if their
tools, if other courts follow suit and treat such outputs as the AI tools merely maximize engagement with advertisements.
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platforms’ own creations rather than third-party content. This An AI tool that suggests the inclusion of viewership-enhancing
shift matters because being deemed the “creator” of unlawful elements (such as keywords) in the published content but
advertising, rather than a “material contributor,” can expose a leaves the selection of those elements to the user, or provides
platform to direct claims, including Lanham Act false advertising for “algorithmic amplification” to target certain audiences, is
claims. “content neutral,” even if the company providing the tool knows
that the third parties are using it to promote unlawful content.
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Prior to the Bouck decision, Section 230 would generally shield
This makes sense because the AI tool functions the same way
a company that provides so-called “interactive computer
regardless of whether an advertiser uses it for an unlawful
services” (e.g., services that provide access to the internet)
purpose.

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