Section 230 of the Communications Decency Act is a little-known statutory provision that is far more powerful and important than most casual internet users realize.
Section 230, as its commonly known, is part of the Communications Decency Act of 1996, a law passed before the internet functioned as we know it to now. The act was Congress’s first attempt to regulate pornography on the internet.
The most controversial part of the law was the anti-indecency provision. This provision imposed criminal sanctions on anyone who used the internet to spread “patently offensive” or “obscene or indecent” content to persons under the age of 18.
The [Communications Decency Act] was Congress’s first attempt to regulate pornography on the internet.
In theory, the provision was aimed at curbing obscene behavior on the internet. In practice, it infringed on the free speech rights of adults. However, the Supreme Court does not like statutory provisions that cool first amendment rights. The Court ruled the anti-indecency provision as unconstitutional.
But, the ruling did not strike the whole law, which leads us to Section 230. Section 230 gives immunity for providers of an “interactive computer service” who publish information provided by others. In legal terms: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.
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This portion of the act was intended to help internet providers be merely a host. Section 230 allowed internet service providers and content providers, to offer space for users to share ideas and content without the fear that they would be liable for their users’ content.
Congress passed Section 230 because it worried that service or content providers might find themselves liable for defamation and other torts if they assumed an editorial role similar to a traditional news or information publisher. So under Section 230, for example, Yelp cannot be held responsible for a user review; only the user can be.
Similarly, Facebook cannot be sued for what its users write or share; again, only the user can be held responsible. Free speech advocates believe Section 230 is invaluable to the internet. The Electronic Frontier Foundation, a nonprofit that aims to protect digital civil liberties, called Section 230 “one of the most valuable tools for protecting freedom of expression and innovation on the Internet.”
Yet, Section 230 was passed in 1996, long before the evolution of Yelp or Facebook, and long before the evolution of the creature known as the “internet troll”: someone who delights in hiding behind a computer screen to harass and intimidate others. So now, no matter what someone says about you on Facebook or Yelp or Twitter, those entities are immune from a lawsuit.
So why is Section 230 important in our current political climate? Because of Russia. The government found in 2017 that Russia used fake Facebook profiles and ads and events to influence the 2016 Presidential election. The New York Times reported that Facebook estimated 150 million users of its site and its popular subsidiary, Instagram, were exposed to the material.
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Congress is calling for such internet companies as Facebook and Twitter to admit that they are more than internet content providers and have become, in a sense, large news networks where millions of users learn about the news – real or fake – and allow those posts to influence their daily lives.
Yet, if these companies admit they are publishers and agree to target fake accounts and fake news, then they may lose Section 230 immunity. This could open the door to waves of litigation to test the limits of these companies’ immunity in the courts.
The limits of Section 230 are also being tested by proposed legislation (known commonly as SESTA, or the “Stop Enabling Sex Traffickers Act”) in both the House and the Senate that aim to stop online sex trafficking – in large part due to the illicit happenings of the website Backpage.com.
Our laws regulating the internet should reflect the state of our reliance on the internet.
The proposed legislation would also allow sex trafficking victims to seek compensation from content providers or websites that “knowingly and recklessly” enabled their victimization. The legislation has support in both the House and the Senate but has not been passed as of early 2018.
Regardless of one’s thoughts on Section 230, one thing is for certain: The Internet landscape has changed drastically since 1996 and the Communications Decency Act. Our laws regulating the internet should reflect the state of our reliance on the internet.
Meghan Nugent is an associate with SpencePC. She has extensive experience assisting clients in both transactional and litigation matters of all natures. The focus of her practice is Intellectual Property. She also assists the firm’s clients in the prosecution and litigation of trademarks.
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