Section 230 is a section of
Title 47 of the United States Code
Title 47 of the United States Code defines the role and structure of the Federal Communications Commission, an independent agency of the United States government, and the National Telecommunications and Information Administration, part of the Unit ...
that was enacted as part of the United States
Communications Decency Act
The Communications Decency Act of 1996 (CDA) was the United States Congress's first notable attempt to regulate pornographic material on the Internet. In the 1997 landmark case ''Reno v. ACLU'', the United States Supreme Court unanimously struck ...
and generally provides immunity for website platforms with respect to third-party content. At its core, Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by third-party users:
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.
Section 230(c)(2) further provides "
Good Samaritan
In most contexts, the concept of good denotes the conduct that should be preferred when posed with a choice between possible actions. Good is generally considered to be the opposite of evil and is of interest in the study of ethics, morality, ph ...
" protection from civil liability for operators of interactive computer services in the good faith removal or moderation of third-party material they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."
Section 230 was developed in response to a pair of lawsuits against Internet service providers (ISPs) in the early 1990s that resulted in different interpretations of whether the service providers should be treated as publishers or, alternatively, as distributors of content created by its users. It was enacted as part of the
Communications Decency Act
The Communications Decency Act of 1996 (CDA) was the United States Congress's first notable attempt to regulate pornographic material on the Internet. In the 1997 landmark case ''Reno v. ACLU'', the United States Supreme Court unanimously struck ...
(CDA) of 1996 (a common name for Title V of the
Telecommunications Act of 1996
The Telecommunications Act of 1996 is a United States federal law enacted by the 104th United States Congress on January 3, 1996, and signed into law on February 8, 1996, by President Bill Clinton. It primarily amended Chapter 5 of Title 47 of t ...
), formally codified as part of the
Communications Act of 1934
The Communications Act of 1934 is a United States federal law signed by President Franklin D. Roosevelt on June 19, 1934 and codified as Chapter 5 of Title 47 of the United States Code, et seq. The Act replaced the Federal Radio Commission with ...
at . After passage of the Telecommunications Act, the CDA was challenged in courts and was ruled by the Supreme Court in ''
Reno v. American Civil Liberties Union'' (1997) to be unconstitutional, though Section 230 was determined to be
severable from the rest of the legislation and remained in place. Since then, several legal challenges have validated the constitutionality of Section 230.
Section 230 protections are not limitless and require providers to remove material illegal on a federal level, such as in
copyright infringement
Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
cases. In 2018, Section 230 was amended by the
Stop Enabling Sex Traffickers Act (FOSTA-SESTA) to require the removal of material violating federal and state sex trafficking laws. In the following years, protections from Section 230 have come under more scrutiny on issues related to
hate speech
Hate speech is defined by the ''Cambridge Dictionary'' as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". Hate speech is "usually thoug ...
and
ideological biases in relation to the power that technology companies can hold on political discussions and became a major issue during the
2020 United States presidential election
The 2020 United States presidential election was the 59th quadrennial presidential election, held on Tuesday, November 3, 2020. The Democratic ticket of former vice president Joe Biden and the junior U.S. senator from California Kamala Ha ...
.
Passed when Internet use was just starting to expand in both breadth of services and range of consumers in the United States,
Section 230 has frequently been referred to as a key law, which allowed the Internet to develop.
Application and limits
Section 230 has two primary parts both listed under §230(c) as the "
Good Samaritan
In most contexts, the concept of good denotes the conduct that should be preferred when posed with a choice between possible actions. Good is generally considered to be the opposite of evil and is of interest in the study of ethics, morality, ph ...
" portion of the law. Under section 230(c)(1), as identified above, an information service provider shall not be treated as a "publisher or speaker" of information from another provider. Section 230(c)(2) provides immunity from
civil liabilities for information service providers that remove or restrict content from their services they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected", as long as they act "in good faith" in this action.
In analyzing the availability of the immunity offered by Section 230, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:
# The defendant must be a "provider or user" of an "interactive computer service".
# The cause of action asserted by the plaintiff must treat the defendant as the "publisher or speaker" of the harmful information at issue.
# The information must be "provided by another information content provider", i.e., the defendant must not be the "information content provider" of the harmful information at issue.
Section 230 immunity is not unlimited. The statute specifically excepts federal criminal liability (§230(e)(1)),
electronic privacy violations (§230(e)(4)) and
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
claims (§230(e)(2)). There is also no immunity from state laws that are consistent with though state criminal laws have been held preempted in cases such as ''Backpage.com, LLC v. McKenna'' and ''Voicenet Communications, Inc. v. Corbett'' (agreeing that "the plain language of the CDA provides ... immunity from inconsistent state criminal laws"). What constitutes "publishing" under the CDA is somewhat narrowly defined by the courts. The Ninth Circuit held that "Publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content." Thus, the CDA does not provide immunity with respect to content that an interactive service provider creates or develops entirely by themselves. CDA immunity also does not bar an action based on
promissory estoppel
A promise is a commitment by someone to do or not do something. As a noun ''promise'' means a declaration assuring that one will or will not do something. As a verb it means to commit oneself by a promise to do or give. It can also mean a capacity ...
.
As of mid-2016, courts have issued conflicting decisions regarding the scope of the intellectual property exclusion set forth in §230(e)(2). For example, in ''
Perfect 10, Inc. v. CCBill, LLC'', the
9th Circuit
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District ...
Court of Appeals ruled that the exception for intellectual property law applies only to ''federal'' intellectual property claims such as copyright infringement, trademark infringement, and patents, reversing a district court ruling that the exception applies to state-law
right of publicity
Personality rights, sometimes referred to as the right of publicity, are rights for an individual to control the commercial use of their identity, such as name, image, likeness, or other unequivocal identifiers. They are generally considered as ...
claims. The 9th Circuit's decision in ''Perfect 10'' conflicts with conclusions from other courts including ''Doe v. Friendfinder''. The ''Friendfinder'' court specifically discussed and rejected the lower court's reading of "intellectual property law" in ''CCBill'' and held that the immunity does not reach state right of publicity claims.
Two bills passed since the passage of Section 230 have added further limits to its protections. The
Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or s ...
in 1998, service providers must comply with additional requirements for copyright infringement to maintain
safe harbor protections from liability, as defined in the DMCA's Title II,
Online Copyright Infringement Liability Limitation Act
The Online Copyright Infringement Liability Limitation Act (OCILLA) is United States federal law that creates a conditional 'safe harbor' for online service providers (OSP) (a group which includes internet service providers (ISP) and other Inter ...
. The
Stop Enabling Sex Traffickers Act (the FOSTA-SESTA act) of 2018 eliminated the safe harbor for service providers in relationship to federal and state sex trafficking laws.
Background and passage
Prior to the Internet, case law was clear that a liability line was drawn between publishers of content and distributors of content; a publisher would be expected to have awareness of material it was publishing and thus should be held liable for any illegal content it published, while a distributor would likely not be aware and thus would be immune. This was established in the 1959 case, ''
Smith v. California
''Smith v. California'', 361 U.S. 147 (1959), was a U.S. Supreme Court case upholding the freedom of the press. The decision deemed unconstitutional a city ordinance that made one in possession of obscene books criminally liable because it did not ...
'', where the Supreme Court ruled that putting liability on the provider (a book store in this case) would have "a collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to exercise it."
In the early 1990s, the Internet became more widely adopted and created means for users to engage in forums and other user-generated content. While this helped to expand the use of the Internet, it also resulted in a number of legal cases putting service providers at fault for the content generated by its users. This concern was raised by legal challenges against
CompuServe
CompuServe (CompuServe Information Service, also known by its initialism CIS) was an American online service provider, the first major commercial one in the world – described in 1994 as "the oldest of the Big Three information services (the oth ...
and
Prodigy
Prodigy, Prodigies or The Prodigy may refer to:
* Child prodigy, a child who produces meaningful output to the level of an adult expert performer
** Chess prodigy, a child who can beat experienced adult players at chess
Arts, entertainment, and ...
, which were early service providers at that time.
CompuServe stated it would not attempt to regulate what users posted on its services, while Prodigy had employed a team of moderators to validate content. Both companies faced legal challenges related to content posted by their users. In ''
Cubby, Inc. v. CompuServe Inc.'', CompuServe was found not be at fault as, by its stance as allowing all content to go unmoderated, it was a distributor and thus not liable for
libel
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
ous content posted by users. However, in ''
Stratton Oakmont, Inc. v. Prodigy Services Co.
''Stratton Oakmont, Inc. v. Prodigy Services Co.'', 23 Media L. Rep. 1794 (New York Supreme Court, N.Y. Sup. Ct. 1995), is a 1995 U.S. New York Supreme Court decision holding that online service providers could be held liable for the speech of the ...
'', the court concluded that because Prodigy had taken an
editorial
An editorial, or leading article (UK) or leader (UK) is an article written by the senior editorial people or publisher of a newspaper, magazine, or any other written document, often unsigned. Australian and major United States newspapers, suc ...
role with regard to customer content, it was a publisher and was legally responsible for libel committed by its customers.
Service providers made their Congresspersons aware of these cases, believing that if followed by other courts across the nation, the cases would stifle the growth of the Internet.
United States Representative
The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...
Christopher Cox
Charles Christopher Cox (born October 16, 1952) is an American attorney and politician who served as chair of the U.S. Securities and Exchange Commission, a 17-year Republican member of the United States House of Representatives, and member of t ...
(R-CA) had read an article about the two cases and felt the decisions were backwards. "It struck me that if that rule was going to take hold then the internet would become the Wild West and nobody would have any incentive to keep the internet civil," Cox stated.
At the time, Congress was preparing the
Communications Decency Act
The Communications Decency Act of 1996 (CDA) was the United States Congress's first notable attempt to regulate pornographic material on the Internet. In the 1997 landmark case ''Reno v. ACLU'', the United States Supreme Court unanimously struck ...
(CDA), part of the omnibus
Telecommunications Act of 1996
The Telecommunications Act of 1996 is a United States federal law enacted by the 104th United States Congress on January 3, 1996, and signed into law on February 8, 1996, by President Bill Clinton. It primarily amended Chapter 5 of Title 47 of t ...
, which was designed to make knowingly sending indecent or obscene material to minors a criminal offense. A version of the CDA had passed through the Senate pushed by Senator
J. James Exon
John James "Jim" Exon (August 9, 1921June 10, 2005) was an American businessman and politician who served as the 33rd Governor of Nebraska from 1971 to 1979, and as a U.S. Senator from Nebraska from 1979 to 1997. A member of the Democratic Par ...
(D-NE).
People in a grassroots effort in the tech industry reacted to try to convince the House of Representatives to challenge Exon's bill. Based on the ''Stratton Oakmont'' decision, Congress recognized that requiring service providers to block indecent content would make them be treated as publishers in the context of the First Amendment, and thus would make them become liable for other content such as libel, not set out in the existing CDA.
Cox and fellow Representative
Ron Wyden
Ronald Lee Wyden (; born May 3, 1949) is an American politician and retired educator serving as the Seniority in the United States Senate, senior United States Senate, United States senator from Oregon, a seat he has held since 1996 United Stat ...
(D-OR) wrote the House bill's section 509, titled the Internet Freedom and Family Empowerment Act, designed to override the decision from ''Stratton Oakmont'', so that a service provider could moderate content as necessary and would not have to act as a wholly neutral conduit. The new provision was added to the text of the proposed statute while the CDA was in conference within the House.
The overall Telecommunications Act, with both Exon's CDA and Cox/Wyden's provision, passed both Houses by near-unanimous votes and was signed into law by President
Bill Clinton
William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...
by February 1996. Cox/Wyden's section became Section 509 of the Telecommunications Act of 1996 and became law as a new Section 230 of the Communications Act of 1934. The anti-indecency portion of the CDA was immediately challenged on passage, resulting in the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
1997 case, ''
Reno v. American Civil Liberties Union'', that ruled all of the anti-indecency sections of the CDA were unconstitutional, but left Section 230 as law.
Impact
Section 230 has often been called "The 26 words that made the Internet".
The passage and subsequent legal history supporting the constitutionality of Section 230 have been considered essential to the growth of the Internet through the early part of the 21st century. Coupled with the Digital Millennium Copyright Act (DMCA) of 1998, Section 230 provides internet service providers safe harbors to operate as intermediaries of content without fear of being liable for that content as long as they take reasonable steps to delete or prevent access to that content. These protections allowed experimental and novel applications in the Internet area without fear of legal ramifications, creating the foundations of modern Internet services such as advanced
search engines
A search engine is a software system designed to carry out web searches. They search the World Wide Web in a systematic way for particular information specified in a textual web search query. The search results are generally presented in a ...
,
social media
Social media are interactive media technologies that facilitate the creation and sharing of information, ideas, interests, and other forms of expression through virtual communities and networks. While challenges to the definition of ''social medi ...
,
video streaming
Video on demand (VOD) is a media distribution system that allows users to access videos without a traditional video playback device and the constraints of a typical static broadcasting schedule. In the 20th century, broadcasting in the form of o ...
, and
cloud computing
Cloud computing is the on-demand availability of computer system resources, especially data storage ( cloud storage) and computing power, without direct active management by the user. Large clouds often have functions distributed over mul ...
.
NERA Economic Consulting
NERA Economic Consulting, Inc., or National Economic Research Associates, is an economic consulting firm founded in 1961. It was the first consulting firm dedicated to methodically applying microeconomic theory to litigation and regulatory matte ...
estimated in 2017 that Section 230 and the DMCA, combined, contributed about 425,000 jobs to the U.S. in 2017 and represented a total revenue of annually.
Subsequent history
Early challenges''Zeran v. AOL'' (1997–2008)
The first major challenge to Section 230 itself was ''
Zeran v. AOL'', a 1997 case decided at the
Fourth Circuit
The United States Court of Appeals for the Fourth Circuit (in case citations, 4th Cir.) is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:
* District of Maryland
...
.
[Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997)] The case involved a person that sued
America Online
AOL (stylized as Aol., formerly a company known as AOL Inc. and originally known as America Online) is an American web portal and online service provider based in New York City. It is a brand marketed by the current incarnation of Yahoo! Inc. ...
(AOL) for failing to remove, in a timely manner, libelous ads posted by AOL users that inappropriately connected his home phone number to the
Oklahoma City bombing
The Oklahoma City bombing was a domestic terrorist truck bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, United States, on April 19, 1995. Perpetrated by two anti-government extremists, Timothy McVeigh and Terry N ...
. The court found for AOL and upheld the constitutionality of Section 230, stating that Section 230 "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." The court asserted in its ruling Congress's rationale for Section 230 was to give Internet service providers broad immunity "to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material."
In addition, ''Zeran'' notes "the amount of information communicated via interactive computer services is ... staggering. The specter of tort liability in an area of such prolific speech would have an obviously chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect."
This rule, cementing Section 230's liability protections, has been considered one of the most important case laws affecting the growth of the Internet, allowing websites to be able to incorporate user-generated content without fear of prosecution. However, at the same time, this has led to Section 230 being used as a shield for some website owners as courts have ruled Section 230 provides complete immunity for ISPs with regard to the
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
s committed by their users over their systems.
Through the next decade, most cases involving Section 230 challenges generally fell in favor of service providers, ruling in favor of their immunity from third-party content on their sites.
Erosion of Section 230 immunity''Roommates.com'' (2008–16)
While Section 230 had seemed to have given near complete immunity to service providers in its first decade, new case law around 2008 started to find cases where providers can be liable for user content due to being a "publisher or speaker" related to that content under §230(c)(1). One of the first such cases to make this challenge was ''
'' 521 F.3d 1157 (9th Cir. 2008),
[http://www.ca9.uscourts.gov/datastore/opinions/2008/04/02/0456916.pdf , ''Fair Hous. Council of San Fernando Valley v. Roommates.com'', LLC, 521 F.3d 1157 (9th Cir. 2008).] The case centered on the services of Roommates.com that helped to match renters based on profiles they created on their website; this profile was generated by a mandatory questionnaire and which included information about their gender and race and preferred roommates' race. The Fair Housing Council of San Fernando Valley stated this created discrimination and violated the
Fair Housing Act
The Civil Rights Act of 1968 () is a landmark law in the United States signed into law by United States President Lyndon B. Johnson during the King assassination riots.
Titles II through VII comprise the Indian Civil Rights Act, which applie ...
, and asserted that Roommates.com was liable for this. In 2008, the Ninth Circuit in an ''
en banc
In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller ...
'' decision ruled against Roommates.com, agreeing that its required profile system made it an information content provider and thus ineligible to receive the protections of §230(c)(1).
The decision from ''Roommates.com'' was considered to be the most significant deviation from ''Zeran'' in how Section 230 was handled in case law.
Eric Goldman
Eric Goldman (born April 15, 1968) is a law professor at Santa Clara University School of Law. He also co-directs the law school's High Tech Law Institute. and co-supervises the law school's Privacy Law Certificate.
Career overview
Goldman is ...
of the
Santa Clara University School of Law
The Santa Clara University School of Law (Santa Clara Law) is the law school of Santa Clara University, a Jesuit university in Santa Clara, California, United States, in the Silicon Valley region. The School of Law was founded in 1911. The Jesuit ...
wrote that while the Ninth Circuit's decision in ''Roommates.com'' was tailored to apply to a limited number of websites, he was "fairly confident that lots of duck-biting plaintiffs will try to capitalize on this opinion and they will find some judges who ignore the philosophical statements and instead turn a decision on the opinion's myriad of ambiguities".
Over the next several years, a number of cases cited the Ninth Circuit's decision in ''Roommates.com'' to limit some of the Section 230 immunity to websites. Law professor
Jeff Kosseff of the
United States Naval Academy
The United States Naval Academy (US Naval Academy, USNA, or Navy) is a federal service academy in Annapolis, Maryland. It was established on 10 October 1845 during the tenure of George Bancroft as Secretary of the Navy. The Naval Academy ...
reviewed 27 cases in the 2015–2016 year involving Section 230 immunity concerns, and found more than half of them had denied the service provider immunity, in contrast to a similar study he had performed in from 2001 to 2002 where a majority of cases granted the website immunity; Kosseff asserted that the ''Roommates.com'' decision was the key factor that led to this change.
Sex trafficking''Backpage.com'' and FOSTA-SESTA (2012–17)
Around 2001, a
University of Pennsylvania
The University of Pennsylvania (also known as Penn or UPenn) is a private research university in Philadelphia. It is the fourth-oldest institution of higher education in the United States and is ranked among the highest-regarded universitie ...
paper warned that "online sexual victimization of American children appears to have reached epidemic proportions" due to the allowances granted by Section 230.
Over the next decade, advocates against such exploitation, such as the
National Center for Missing and Exploited Children
The National Center for Missing & Exploited Children (NCMEC) is a private, nonprofit organization established in 1984 by the United States Congress. In September 2013, the United States House of Representatives, United States Senate, and the Pres ...
and
Cook County
Cook County is the most populous county in the U.S. state of Illinois and the second-most-populous county in the United States, after Los Angeles County, California. More than 40% of all residents of Illinois live within Cook County. As of 20 ...
Sheriff
Tom Dart
Thomas J. Dart (born May 22, 1962) is an American attorney, politician, and law enforcement officer serving as the Sheriff of Cook County, Illinois. He previously served as a member of both chambers of the Illinois General Assembly.
Education ...
, pressured major websites to block or remove content related to sex trafficking, leading to sites like
Facebook
Facebook is an online social media and social networking service owned by American company Meta Platforms. Founded in 2004 by Mark Zuckerberg with fellow Harvard College students and roommates Eduardo Saverin, Andrew McCollum, Dustin M ...
,
MySpace, and
Craigslist
Craigslist (stylized as craigslist) is an American classified advertisements website with sections devoted to jobs, housing, for sale, items wanted, services, community service, Gig worker, gigs, résumés, and discussion forums.
Craig Newmark ...
to pull such content. Because mainstream sites were blocking this content, those that engaged or profited from trafficking started to use more obscure sites, leading to the creation of sites like
Backpage. In addition to removing these from the public eye, these new sites worked to obscure what trafficking was going on and who was behind it, limiting ability for law enforcement to take action.
Backpage and similar sites quickly came under numerous lawsuits from victims of the sex traffickers and exploiters for enabling this crime, but the court continually found in favor of Backpage due to Section 230. Attempts to block Backpage from using credit card services as to deny them revenue was also defeated in the courts, as Section 230 allowed their actions to stand in January 2017.
Due to numerous complaints from constituents, Congress began an investigation into Backpage and similar sites in January 2017, finding Backpage complicit in aiding and profiting from illegal sex trafficking.
Subsequently, Congress introduced the FOSTA-SESTA bills: the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) in the House of Representatives by
Ann Wagner
Ann Louise Wagner (née Trousdale, September 13, 1962) is an American politician and diplomat serving as the U.S. representative for Missouri's 2nd congressional district. A member of the Republican Party, she was the United States ambassador t ...
(R-MO) in April 2017, and the Stop Enabling Sex Traffickers Act (SESTA) U.S. Senate bill introduced by
Rob Portman
Robert Jones Portman (born December 19, 1955) is an American attorney and politician serving as the Seniority in the United States Senate, junior United States Senate, United States senator from Ohio since 2011. A member of the Republican Party ...
(R-OH) in August 2017. Combined, the FOSTA-SESTA bills modified Section 230 to exempt service providers from Section 230 immunity when dealing with civil or criminal crimes related to sex trafficking, which removes section 230 immunity for services that knowingly facilitate or support sex trafficking. The bill passed both Houses and was signed into law by President
Donald Trump
Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021.
Trump graduated from the Wharton School of the University of Pe ...
on April 11, 2018.
The bills were criticized by pro-
free speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been ...
and pro-Internet groups as a "disguised internet censorship bill" that weakens the section 230 immunity, places unnecessary burdens on Internet companies and intermediaries that handle user-generated content or communications with service providers required to proactively take action against sex trafficking activities, and requires a "team of lawyers" to evaluate all possible scenarios under state and federal law (which may be financially unfeasible for smaller companies).
Critics also argued that FOSTA-SESTA did not distinguish between consensual, legal sex offerings from non-consensual ones, and argued it would cause websites otherwise engaged in legal offerings of sex work would be threatened with liability charges.
Online sex workers argued that the bill would harm their safety, as the platforms they utilize for offering and discussing sexual services in a legal manner (as an alternative to
street prostitution
Street prostitution is a form of sex work in which a sex worker solicits customers from a public place, most commonly a street, while waiting at street corners or walking alongside a street, but also other public places such as parks, benches, e ...
) had begun to reduce their services or shut down entirely due to the threat of liability under the bill.
Debate on protections for social media (2016–present)
Many social media sites, notably the
Big Tech
Big Tech, also known as the Tech Giants, refers to the most dominant companies in the information technology industry, mostly located in the United States. The term also refers to the four or five largest American tech companies, called the Big ...
companies of Facebook,
Google
Google LLC () is an American multinational technology company focusing on search engine technology, online advertising, cloud computing, computer software, quantum computing, e-commerce, artificial intelligence, and consumer electronics. ...
, and
Apple
An apple is an edible fruit produced by an apple tree (''Malus domestica''). Apple fruit tree, trees are agriculture, cultivated worldwide and are the most widely grown species in the genus ''Malus''. The tree originated in Central Asia, wh ...
, as well as
Twitter
Twitter is an online social media and social networking service owned and operated by American company Twitter, Inc., on which users post and interact with 280-character-long messages known as "tweets". Registered users can post, like, and ...
, have come under scrutiny as a result of the alleged
Russian interference in the 2016 United States elections
The Russian government interfered in the 2016 U.S. presidential election with the goals of harming the campaign of Hillary Clinton, boosting the candidacy of Donald Trump, and increasing political and social discord in the United States. Acc ...
, where it was alleged that Russian agents used the sites to spread propaganda and
fake news
Fake news is false or misleading information presented as news. Fake news often has the aim of damaging the reputation of a person or entity, or making money through advertising revenue.Schlesinger, Robert (April 14, 2017)"Fake news in reality ...
to swing the election in favor of Donald Trump. These platforms also were criticized for not taking action against users that used the social media outlets for harassment and hate speech against others. Shortly after the passage of FOSTA-SESTA acts, some in Congress recognized that additional changes could be made to Section 230 to require service providers to deal with these bad actors, beyond what Section 230 already provided to them.
Numerous experts have suggested that changing 230 without repealing it entirely would be the optimal way to improve it. Google's former fraud czar
Shuman Ghosemajumder
Shuman Ghosemajumder (born 1974) is a Canadian technologist, entrepreneur, and author. He is the former click fraud czar at Google, the author of works on technology and business including the Open Music Model, and co-founder of TeachAids. He was ...
proposed in 2021 that full protections should only apply to unmonetized content, to align platforms' content moderation efforts with their financial incentives, and to encourage the use of better technology to achieve that necessary scale. Researchers
Marshall Van Alstyne
Marshall W. Van Alstyne (born March 28, 1962) is a professor at Boston University and research associate at the MIT Initiative on the Digital Economy. He co-developed the theory of two-sided markets with Geoffrey G Parker. His work focuses on the ...
and
Michael D. Smith supported this idea of an additional duty-of-care requirement. However, journalist
Martin Baron
Martin Baron (born October 24, 1954) is an American journalist who was editor of ''The Washington Post'' from December 31, 2012, until his retirement on February 28, 2021. He was previously the editor of ''The Boston Globe'' from 2001 to 2012.
Ba ...
has argued that most of Section 230 is essential for social media companies to exist at all.
Platform neutrality
Some politicians, including Republican senators
Ted Cruz
Rafael Edward "Ted" Cruz (; born December 22, 1970) is an American politician and attorney serving as the junior United States Senator from Texas since 2013. A member of the Republican Party, Cruz served as Solicitor General of Texas from ...
(TX) and
Josh Hawley
Joshua David Hawley (born December 31, 1979) is an American politician and lawyer who has served as the junior United States senator from Missouri since 2019. A member of the Republican Party, Hawley served as the 42nd attorney general of Mi ...
(MO), have accused major social networks of
displaying a bias against
conservative
Conservatism is a cultural, social, and political philosophy that seeks to promote and to preserve traditional institutions, practices, and values. The central tenets of conservatism may vary in relation to the culture and civilization i ...
perspectives when moderating content (such as
Twitter suspensions
Twitter may suspend accounts, temporarily or permanently, from their social networking service. Suspensions of high-profile individuals often attract media attention when they occur. There have been concerted campaigns by Twitter to shut down te ...
).
In a
Fox News
The Fox News Channel, abbreviated FNC, commonly known as Fox News, and stylized in all caps, is an American multinational conservative cable news television channel based in New York City. It is owned by Fox News Media, which itself is owne ...
op-ed
An op-ed, short for "opposite the editorial page", is a written prose piece, typically published by a North-American newspaper or magazine, which expresses the opinion of an author usually not affiliated with the publication's editorial board. O ...
, Cruz argued that section 230 should only apply to providers that are politically "neutral", suggesting that a provider "should be considered to be a
liable
In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencie ...
'publisher or speaker' of user content if they pick and choose what gets published or spoke."
Section 230 does not contain any requirements that moderation decisions be neutral.
Hawley alleged that section 230 immunity was a "sweetheart deal between big tech and big government".
In December 2018, Republican representative
Louie Gohmert
Louis Buller Gohmert Jr. (; born August 18, 1953) is an American attorney, politician, and former jurist serving as the U.S. representative from Texas's 1st congressional district since 2005. Gohmert is a Republican and was part of the Tea P ...
introduced the Biased Algorithm Deterrence Act (H.R.492), which would remove all section 230 protections for any provider that used filters or any other type of algorithms to display user content when otherwise not directed by a user.
In June 2019, Hawley introduced the Ending Support for Internet Censorship Act (S. 1914), that would remove section 230 protections from companies whose services have more than 30 million active monthly users in the U.S. and more than 300 million worldwide, or have over $500 million in annual global revenue, unless they receive a certification from the majority of the
Federal Trade Commission
The Federal Trade Commission (FTC) is an independent agency of the United States government whose principal mission is the enforcement of civil (non-criminal) antitrust law and the promotion of consumer protection. The FTC shares jurisdiction ov ...
that they do not moderate against any political viewpoint, and have not done so in the past 2 years.
There has been criticism—and support—of the proposed bill from various points on the political spectrum. A poll of more than 1,000 voters gave Senator Hawley's bill a net favorability rating of 29 points among Republicans (53% favor, 24% oppose) and 26 points among Democrats (46% favor, 20% oppose). Some Republicans feared that by adding FTC oversight, the bill would continue to fuel fears of a big government with excessive oversight powers.
Nancy Pelosi
Nancy Patricia Pelosi (; ; born March 26, 1940) is an American politician who has served as Speaker of the United States House of Representatives since 2019 and previously from 2007 to 2011. She has represented in the United States House of ...
, the Democratic
Speaker of the House
The speaker of a deliberative assembly, especially a legislative body, is its presiding officer, or the chair. The title was first used in 1377 in England.
Usage
The title was first recorded in 1377 to describe the role of Thomas de Hungerf ...
, has indicated support for the same approach Hawley has taken. The chairman of the Senate Judiciary Committee, Senator Graham, has also indicated support for the same approach Hawley has taken, saying "he is considering legislation that would require companies to uphold 'best business practices' to maintain their liability shield, subject to periodic review by federal regulators."
Legal experts have criticized the Republicans' push to make Section 230 encompass platform neutrality. Wyden stated in response to potential law changes that "Section 230 is not about neutrality. Period. Full stop. 230 is all about letting private companies make their own decisions to leave up some content and take other content down." Kosseff has stated that the Republican intentions are based on a "fundamental misunderstanding" of Section 230's purpose, as platform neutrality was not one of the considerations made at the time of passage. Kosseff stated that political neutrality was not the intent of Section 230 according to the framers, but rather making sure providers had the ability to make content-removal judgement without fear of liability.
There have been concerns that any attempt to weaken Section 230 could actually cause an increase in censorship when services lose their exemption from liability.
Attempts to bring damages to tech companies for apparent anti-conservative bias in courts, arguing against Section 230 protections, have generally failed. A lawsuit brought by the non-profit
Freedom's Watch in 2018 against Google, Facebook, Twitter, and Apple on antitrust violations for using their positions to create anti-conservative censorship was dismissed by the
D.C. Circuit Court of Appeals
The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate cou ...
in May 2020, with the judges ruling that censorship can only apply to First Amendment rights blocked by the government and not by private entities.
Hate speech
In the wake of the 2019 shootings in
Christchurch, New Zealand
Christchurch ( ; mi, Ōtautahi) is the largest city in the South Island of New Zealand and the seat of the Canterbury Region. Christchurch lies on the South Island's east coast, just north of Banks Peninsula on Pegasus Bay. The Avon River / ...
,
El Paso, Texas
El Paso (; "the pass") is a city in and the county seat, seat of El Paso County, Texas, El Paso County in the western corner of the U.S. state of Texas. The 2020 population of the city from the United States Census Bureau, U.S. Census Bureau w ...
, and
Dayton, Ohio
Dayton () is the sixth-largest city in the U.S. state of Ohio and the county seat of Montgomery County. A small part of the city extends into Greene County. The 2020 U.S. census estimate put the city population at 137,644, while Greater Day ...
, the impact on Section 230 and liability towards online
hate speech
Hate speech is defined by the ''Cambridge Dictionary'' as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". Hate speech is "usually thoug ...
has been raised. In both the Christchurch and El Paso shootings, the perpetrator posted hate speech manifestos to
8chan
8kun, previously called 8chan, Infinitechan or Infinitychan (stylized as ∞chan), is an imageboard website composed of user-created message boards. An owner moderates each board, with minimal interaction from site administration. The site ha ...
, a moderated
imageboard
An imageboard is a type of Internet forum that focuses on the posting of images, often alongside text and discussion. The first imageboards were created in Japan as an extension of the textboard concept. These sites later inspired the creation of ...
known to be favorable for the posting of extreme views. Concerned politicians and citizens raised calls at large tech companies for the need for hate speech to be removed from the Internet; however, hate speech is generally protected speech under the First Amendment, and Section 230 removes the liability for these tech companies to moderate such content as long as it is not illegal. This has given the appearance that tech companies do not need to be proactive against hateful content, thus allowing the hate content to proliferate online and lead to such incidents.
Notable articles on these concerns were published after the El Paso shooting by ''
The New York Times
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'',
''
The Wall Street Journal
''The Wall Street Journal'' is an American business-focused, international daily newspaper based in New York City, with international editions also available in Chinese and Japanese. The ''Journal'', along with its Asian editions, is published ...
'', and ''
Bloomberg Businessweek
''Bloomberg Businessweek'', previously known as ''BusinessWeek'', is an American weekly business magazine published fifty times a year. Since 2009, the magazine is owned by New York City-based Bloomberg L.P. The magazine debuted in New York City ...
'',
among other outlets, but which were criticized by legal experts including
Mike Godwin
Michael Wayne Godwin (born October 26, 1956) is an American attorney and author. He was the first staff counsel of the Electronic Frontier Foundation (EFF), and he created the Internet adage Godwin's law and the notion of an Internet meme, as ...
,
Mark Lemley
Mark A. Lemley (born c. 1966) is currently the William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Law School Program in Law, Science & Technology, as well as a founding partner of the law firm of Durie Tang ...
, and
David Kaye, as the articles implied that hate speech was protected by Section 230, when it is in fact protected by the First Amendment. In the case of ''The New York Times'', the paper issued a correction to affirm that the First Amendment protected hate speech, and not Section 230.
Members of Congress have indicated they may pass a law that changes how Section 230 would apply to hate speech as to make tech companies liable for this. Wyden, now a Senator, stated that he intended for Section 230 to be both "a sword and a shield" for Internet companies, the "sword" allowing them to remove content they deem inappropriate for their service, and the shield to help keep offensive content from their sites without liability. However, Wyden warned that because tech companies have not been willing to use the sword to remove content, they could be at risk of losing the shield.
Some have compared Section 230 to the
Protection of Lawful Commerce in Arms Act
The Protection of Lawful Commerce in Arms Act (PLCAA) is a U.S law, passed in 2005, that protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. Both arms manufacturers and dealers ...
, a law that grants gun manufacturers immunity from certain types of lawsuits when their weapons are used in criminal acts. According to law professor
Mary Anne Franks
Mary Anne Franks is an American legal scholar, author, activist, and media commentator. She is a professor of law and the Michael R. Klein Distinguished Scholar Chair at the University of Miami School of Law, where she teaches First Amendment law, ...
, "They have not only let a lot of bad stuff happen on their platforms, but they've actually decided to profit off of people's bad behavior."
Representative
Beto O'Rourke
Robert Francis "Beto" O'Rourke ( , ; ; born September 26, 1972) is an American politician who served as the U.S. representative for from 2013 to 2019. A member of the Democratic Party, O'Rourke was the party's nominee for the U.S. Senat ...
stated his intent for his
2020 presidential campaign to introduce sweeping changes to Section 230 to make Internet companies liable for not being proactive in taking down hate speech. O'Rourke later dropped out of the race. Fellow candidate and former vice president
Joe Biden has similarly called for Section 230 protections to be weakened or otherwise "revoked" for "big tech" companies—particularly Facebook—having stated in a January 2020 interview with ''The New York Times'' that "
acebookis not merely an internet company. It is propagating falsehoods they know to be false", and that the U.S. needed to "
etstandards" in the same way that the European Union's
General Data Protection Regulation
The General Data Protection Regulation (GDPR) is a European Union regulation on data protection and privacy in the EU and the European Economic Area (EEA). The GDPR is an important component of EU privacy law and of human rights law, in partic ...
(GDPR) set standards for online privacy.
Immunity from content related to illegal activities
In the aftermath of the Backpage trial and subsequent passage of FOSTA-SESTA, others have found that Section 230 appears to protect tech companies from content that is otherwise illegal under United States law. Professor
Danielle Citron
Danielle Keats Citron is a Jefferson Scholars Foundation Schenck Distinguished Professor in Law at the University of Virginia School of Law, where she teaches information privacy, free expression, and civil rights law. Citron is the author of "Th ...
and journalist
Benjamin Wittes
Benjamin Wittes (born November 5, 1969) is an American legal journalist and Senior Fellow in Governance Studies at the Brookings Institution, where he is the Research Director in Public Law, and Co-Director of the Harvard Law School–Brookings ...
found that as late as 2018, several groups deemed as terrorist organizations by the United States had been able to maintain social media accounts on services run by American companies, despite federal laws that make providing material support to terrorist groups subject to civil and criminal charges. However, case law from the
Second Circuit
The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate jur ...
has ruled that under Section 230, technology companies are generally not liable for civil claims based on terrorism-related content.
U.S. Supreme Court Justice
Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
has stated that Section 230 gives companies too much immunity in these area, as reported in his several dissenting statements to court orders denying certification of cases related to Section 230. Thomas believed that the Supreme Court needed to review the limits granted by Section 230.
The Supreme Court will hear the cases of ''
Gonzalez v. Google LLC'' and ''
Twitter, Inc. v. Taamneh'' in the 2022 term. ''Gonzalez'' involves Google's liability for the YouTube recommendation options that appeared to promote recruitment videos for ISIS that led to the death of a U.S. citizen in a
2015 Paris terrorist attack. Google has claimed it is not liable under Section 230 protections. In ''Twitter'', the company had been found liable for hosting terrorism-related content from third-party users under the Anti-Terrorism Act under 18 U.S.C. § 2333, without the consideration of Section 230's protections.
2020 Department of Justice review
In February 2020, the
United States Department of Justice
The United States Department of Justice (DOJ), also known as the Justice Department, is a federal executive department of the United States government tasked with the enforcement of federal law and administration of justice in the United State ...
held a workshop related to Section 230 as part of an ongoing antitrust probe into "big tech" companies.
Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
William Barr
William Pelham Barr (born May 23, 1950) is an American attorney who served as the 77th and 85th United States attorney general in the administrations of Presidents George H. W. Bush and Donald Trump.
Born and raised in New York City, Barr ...
said that while Section 230 was needed to protect the Internet's growth while most companies were not stable, "No longer are technology companies the underdog upstarts...They have become titans of U.S. industry" and questioned the need for Section 230's broad protections.
Barr said that the workshop was not meant to make policy decisions on Section 230, but part of a "holistic review" related to Big Tech since "not all of the concerns raised about online platforms squarely fall within antitrust" and that the Department of Justice would want to see reform and better incentives to improve online content by tech companies within the scope of Section 230 rather than change the law directly.
Observers to the sessions stated the focus of the talks only covered Big Tech and small sites that engaged in areas of revenge porn, harassment, and child sexual abuse, but did not consider much of the intermediate uses of the Internet.
The DOJ issued their four major recommendations to Congress in June 2020 to modify Section 230. These include:
# Incentivizing platforms to deal with illicit content, including calling out "Bad Samaritans" that solicit illicit activity and remove their immunity, and carve out exemptions in the areas of child abuse, terrorism, and cyber-stalking, as well as when platforms have been notified by courts of illicit material;
# Removing protections from civil lawsuits brought by the federal government;
# Disallowing Section 230 protections in relationship to antitrust actions on the large Internet platforms; and
# Promoting discourse and transparency by defining existing terms in the statute like "otherwise objectionable" and "good faith" with specific language, and requiring platforms to publicly document when they take moderation actions against content unless that may interfere with law enforcement or risk harm to an individual.
Legislation to alter Section 230
In 2020, several bills were introduced through Congress to limit the liability protections that Internet platforms had from Section 230 as a result of events in the preceding years.
;
EARN IT Act of 2020
The EARN IT ActS. 3538 is proposed legislation first introduced in 2020 in the United States Congress. It aims to amend Section 230 of the Communications Act of 1934, which allows operators of websites to remove user-posted content that they dee ...
:In March 2020, a bi-partisan bill known as the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act () was introduced to the Senate, which called for the creation of a 15-member government commission (including administration officials and industry experts) to establish "best practices" for the detection and reporting of child exploitation materials. Internet services would be required to follow these practices; the commission would have the power to penalize those who are not in compliance, which can include removing their Section 230 protections.
:While the bill had bi-partisan support from its sponsors (
Lindsey Graham
Lindsey Olin Graham (born July 9, 1955) is an American lawyer and politician serving as the senior United States senator from South Carolina, a seat he has held since 2003. A member of the Republican Party, Graham chaired the Senate Committee ...
, Josh Hawley,
Dianne Feinstein
Dianne Goldman Berman Feinstein ( ; born Dianne Emiel Goldman; June 22, 1933) is an American politician who serves as the senior United States senator from California, a seat she has held since 1992. A member of the Democratic Party, she was ...
, and
Richard Blumenthal
Richard Blumenthal (; born February 13, 1946) is an American lawyer and politician who is the senior United States senator from Connecticut, a seat he has held since 2011. A member of the Democratic Party, he is one of the wealthiest members of ...
) and backing from groups like National Center for Missing and Exploited Children and the
National Center on Sexual Exploitation
The National Center on Sexual Exploitation (NCOSE), formerly known as Morality in Media, is an American conservative non-profit known for its anti-pornography advocacy. The group has also campaigned against sex trafficking, same-sex marriage, sex ...
, the EARN IT Act was criticized by a coalition of 25 organizations, as well as by human rights groups including the
Electronic Frontier Foundation
The Electronic Frontier Foundation (EFF) is an international non-profit digital rights group based in San Francisco, California. The foundation was formed on 10 July 1990 by John Gilmore, John Perry Barlow and Mitch Kapor to promote Internet ci ...
, the
American Civil Liberties Union
The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
, and
Human Rights Watch
Human Rights Watch (HRW) is an international non-governmental organization, headquartered in New York City, that conducts research and advocacy on human rights. The group pressures governments, policy makers, companies, and individual human r ...
. Opponents of the bill recognized that some of the "best practices" would most likely include a
backdoor
A back door is a door in the rear of a building. Back door may also refer to:
Arts and media
* Back Door (jazz trio), a British group
* Porta dos Fundos (literally “Back Door” in Portuguese) Brazilian comedy YouTube channel.
* Works so title ...
for law enforcement into any encryption used on the site, in addition to the dismantling of Section 230's approach, based on commentary made by members of the federal agencies that would be placed on this commission. For example, Attorney General Barr has extensively argued that the use of
end-to-end encryption
End-to-end encryption (E2EE) is a system of communication where only the communicating users can read the messages. In principle, it prevents potential eavesdroppers – including telecom providers, Internet providers, malicious actors, and even ...
by online services can obstruct investigations by law enforcement, especially those involving child exploitation and has pushed for a governmental backdoor into encryption services.
The Senators behind EARN IT have stated that there is no intent to bring any such encryption backdoors with this legislation.
:Wyden also was critical of the bill, calling it "a transparent and deeply cynical effort by a few well-connected corporations and the Trump administration to use child sexual abuse to their political advantage, the impact to free speech and the security and privacy of every single American be damned."
Graham stated that the goal of the bill was "to do this in a balanced way that doesn't overly inhibit innovation, but forcibly deals with child exploitation." As an implicit response to EARN IT, Wyden along with House Representative
Anna G. Eshoo proposed a new bill, the Invest in Child Safety Act, in May 2020 that would give to the Department to Justice to give additional manpower and tools to enable them to address child exploitation directly rather than to rely on technology companies to rein in the problem.
:The EARN IT Act advanced out of the
senate judiciary committee
The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a standing committee of 22 U.S. senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nominations, a ...
by a unanimous 22-0 vote on July 2, 2020, following an amendment by Lindsey Graham. Graham's amendment removed the legal authority of the proposed federal commission, instead giving a similar authority to each individual state government. The bill was introduced into the House on October 2, 2020.
;Limiting Section 230 Immunity to Good Samaritans Act
:In June 2020, Hawley and three Republican Senators,
Marco Rubio
Marco Antonio Rubio (born May 28, 1971) is an American politician and lawyer serving as the senior United States senator from Florida, a seat he has held since 2011. A member of the Republican Party, he served as Speaker of the Florida Hous ...
,
Kelly Loeffler
Kelly Lynn Loeffler (, ; born November 27, 1970) is an American businesswoman and politician who served as a United States senator for Georgia from 2020 to 2021. Loeffler was chief executive officer (CEO) of Bakkt, a subsidiary of commodity and ...
and
Kevin Cramer
Kevin John Cramer (born January 21, 1961) is an American politician who has served as the junior United States senator for North Dakota since 2019. A member of the Republican Party, he represented North Dakota's at-large congressional district ...
, called on the FCC to review the protections that the Big Tech companies had from Section 230, stating in their letter that "It is time to take a fresh look at Section 230 and to interpret the vague standard of 'good faith' with specific guidelines and direction" due to the "a lack of clear rules" and the "judicial expansion" around the statute. Hawley introduced the "Limiting Section 230 Immunity to Good Samaritans Act" bill in the Senate on June 17, 2020, with co-sponsors Rubio,
Mike Braun
Michael Kent Braun (; born March 24, 1954) is an American businessman and politician serving as the junior United States senator from Indiana since 2019. A member of the Republican Party, he previously represented the 63rd district in the India ...
and
Tom Cotton
Thomas Bryant Cotton (born May 13, 1977) is an American politician, attorney, and former military officer serving as the junior United States senator for Arkansas since 2015. A member of the Republican Party, he served in the U.S. House of R ...
, which would allow providers with over 30 million monthly U.S. users and over in global revenues to be liable to lawsuits from users who believed that the provider was not uniformly enforcing content; users would be able to seek damages up to and lawyers fees under the bill.
;Platform Accountability and Consumer Transparency (PACT) Act
:A bi-partisan bill introduced by Senators
Brian Schatz
Brian Emanuel Schatz (; born October 20, 1972) is an American educator and politician serving as the senior United States senator from Hawaii, a seat he has held since 2012. A member of the Democratic Party, Schatz served in the Hawaii House o ...
and
John Thune
John Randolph Thune ( ; born January 7, 1961) is an American politician and businessman serving as the Seniority in the United States Senate, senior United States senator from South Dakota, a seat he has held since 2005, and as the Party leaders ...
in June 2020, the "Platform Accountability and Consumer Technology Act" would require Internet platforms to issue public statements on their policies for how they moderate, demonetize, and remove user content from their platforms, and to publish public quarterly reports to summarize their actions and statistics for that quarter. The bill would also mandate that platforms conform with all court-ordered removal of content deemed illegal within 24 hours. Further, the bill would eliminate platforms' Section 230 protections from federal civil liability in cases brought against the platforms and would enable states' attorney generals to enforce actions against platforms. Schatz and Thune considered their approach more of "a scalpel, rather than a jackhammer" in contrast to other options that have been presented to date.
;Behavioral Advertising Decisions Are Downgrading Services (BAD ADS) Act
:Hawley introduced the Behavioral Advertising Decisions Are Downgrading Services Act in July 2020, which would remove Section 230 protections for larger service providers (30 million users in the U.S. or 300 million globally and with more than in annual revenue) if their sites used
behavioral advertising
Targeted advertising is a form of advertising, including online advertising, that is directed towards an audience with certain traits, based on the product or person the advertiser is promoting. These traits can either be demographic with a focus ...
, with ads tailored to the users of the sites based on how the users had engaged with the site or where they were located. Hawley had spoken out against such ad practices and had previously tried to add legislation to require service providers to add "do not track" functionality for Internet ads.
;Online Freedom and Viewpoint Diversity Act
:Republican Senators Lindsey Graham,
Roger Wicker
Roger Frederick Wicker (born July 5, 1951) is an American attorney and politician serving as the senior United States senator from Mississippi, in office since 2007. A member of the Republican Party, Wicker previously served as a member of the ...
and
Marsha Blackburn
Mary Marsha Blackburn (née Wedgeworth; born June 6, 1952) is an American politician and businesswoman serving as the senior United States Senate, United States senator from Tennessee, a seat she has held since 2019. She is a member of the Repu ...
introduced the Online Freedom and Viewpoint Diversity Act in September 2020. The bill, if passed, would strip away Section 230 liability protection for sites that fail to give reason for actions taken in moderating or restricting content, and require them to state that said content must have an "objectively reasonable belief" it violated their site's terms or the site could be penalized. The bill would also replace the vague "objectionable" term in Section 230(c)(2) with more specific categories, like "unlawful" material where a website would not become liable for taking steps to moderate content.
;Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act (SAFE TECH act)
:Democratic Senators Mark Warner,
Mazie Hirono
Mazie Keiko Hirono (; Japanese name: , ; born November 3, 1947) is an American lawyer and politician serving as the junior United States senator from Hawaii since 2013. A member of the Democratic Party, Hirono previously served as a member of the ...
and Amy Klobuchar introduced the SAFE TECH in February 2021. The bill has multiple parts. It would first alter 230(c)(1) to cover only "speech" and not "information" making providers liable for illegal speech. It would also remove the Good Samaritan immunity around federal and state laws with regards to civil rights laws, antitrust laws, cyberstalking laws, human rights laws or civil actions regarding a wrongful death. Further, it would eliminate the immunity for any speech that the provider was paid to carry, such as through advertising or marketplace listings. Finally, it would force providers to comply with court orders for removal of material related to the prior areas.
Executive Order on Preventing Online Censorship
President Donald Trump was a major proponent of limiting the protections of technology and media companies under Section 230 due to claims of an anti-conservative bias. In July 2019, Trump held a "Social Media Summit" that he used to criticize how Twitter, Facebook, and Google handled conservative voices on their platforms. During the summit, Trump warned that he would seek "all regulatory and legislative solutions to protect free speech".
![Donald J Trump (realDonaldTrump) Twitter - публикация от 2020-05-26](https://upload.wikimedia.org/wikipedia/commons/3/36/Donald_J_Trump_%28realDonaldTrump%29_Twitter_-_%D0%BF%D1%83%D0%B1%D0%BB%D0%B8%D0%BA%D0%B0%D1%86%D0%B8%D1%8F_%D0%BE%D1%82_2020-05-26.png)
In late May 2020, President Trump made statements that
mail-in voting
Postal voting is voting in an election where ballot papers are distributed to electors (and typically returned) by post, in contrast to electors voting in person at a polling station or electronically via an electronic voting system.
In an el ...
would lead to massive fraud, in a pushback against the use of mail-in voting due to the
COVID-19 pandemic
The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing global pandemic of coronavirus disease 2019 (COVID-19) caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The novel virus was first identif ...
for the upcoming 2020 primary elections, in both his public speeches and his
social media accounts
Social organisms, including human(s), live collectively in interacting populations. This interaction is considered social whether they are aware of it or not, and whether the exchange is voluntary or not.
Etymology
The word "social" derives from ...
. In a Twitter message on May 26, 2020, he stated that, "There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent." Shortly after its posting, Twitter moderators marked the message with a "potentially misleading" warning (a process it had introduced a few weeks earlier that month primarily in response to misinformation about the COVID-19 pandemic) linking readers to a special page on its site that provided analysis and fact-checks of Trump's statement from media sources like
CNN
CNN (Cable News Network) is a multinational cable news channel headquartered in Atlanta, Georgia, U.S. Founded in 1980 by American media proprietor Ted Turner and Reese Schonfeld as a 24-hour cable news channel, and presently owned by ...
and ''
The Washington Post
''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large nati ...
'', the first time it had used the process on Trump's messages.
Jack Dorsey
Jack Patrick Dorsey (born November 19, 1976) is an American Internet entrepreneur and programmer who is a co-founder and former CEO of Twitter, Inc., as well as a co-founder and the CEO and chairperson of Block, Inc., the developer of the Squar ...
, Twitter's CEO, defended the moderation, stating that they were not acting as a "arbitrator of truth" but instead "Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves." Trump was angered by this, and shortly afterwards threatened that he would take action to "strongly regulate" technology companies, asserting these companies were suppressing conservative voices.
On May 28, 2020, Trump signed the "Executive Order on Preventing Online Censorship" (EO 13925), an
executive order
In the United States, an executive order is a directive by the president of the United States that manages operations of the federal government. The legal or constitutional basis for executive orders has multiple sources. Article Two of th ...
directing regulatory action at Section 230. Trump stated in a press conference before signing his rationale for it: "A small handful of social media monopolies controls a vast portion of all public and private communications in the United States. They've had unchecked power to censor, restrict, edit, shape, hide, alter, virtually any form of communication between private citizens and large public audiences."
The EO asserts that media companies that edit content apart from restricting posts that are violent, obscene or harassing, as outlined in the "Good Samaritan" clause §230(c)(2), are then "engaged in editorial conduct" and may forfeit any safe-harbor protection granted in §230(c)(1).
From that, the EO specifically targets the "Good Samaritan" clause for media companies in their decisions to remove offensive material "in good faith". Courts have interpreted the "in good faith" portion of the statute based on its plain language; the EO purports to establish conditions where that good faith may be revoked, such as if the media companies have shown bias in how they remove material from the platform. The goal of the EO is to remove the Section 230 protections from such platforms, thus leaving them liable for content.
Whether a media platform has bias would be determined by a rulemaking process to be set by the Federal Communication Commission in consultation with the Commerce Department, the
National Telecommunications and Information Administration
The National Telecommunications and Information Administration (NTIA) is an agency of the United States Department of Commerce that serves as the President's principal adviser on telecommunications policies pertaining to the United States' ec ...
(NTIA), and the Attorney General, while the Justice Department and state attorneys general will handle disputes related to bias, gather these to report to the Federal Trade Commission, who would make determinations if a federal lawsuit should be filed. Additional provisions prevent government agencies from advertising on media company platforms that are demonstrated to have such bias.
The EO came under intense criticism and legal analysis after its announcement. Senator Wyden stated that the EO was a "mugging of the First Amendment", and that there does need to be a thoughtful debate about modern considerations for Section 230, though the political spat between Trump and Twitter is not a consideration. Professor Kate Klonick of
St. John's University School of Law in New York considered the EO "political theater" without any weight of authority.
The Electronic Frontier Foundation's Aaron Mackey stated that the EO starts with a flawed misconstruing of linking sections §230(c)(1) and §230(c)(2), which were not written to be linked and have been treated by case law as independent statements in the statute, and thus "has no legal merit".
By happenstance, the EO was signed on the same day that
riots erupted in Minneapolis, Minnesota in the wake of the
murder of George Floyd
On , George Floyd, a 46-year-old black man, was murdered in the U.S. city of Minneapolis by Derek Chauvin, a 44-year-old white police officer. Floyd had been arrested on suspicion of using a counterfeit $20 bill. Chauvin knelt on Floyd's n ...
, an African-American from an incident involving four officers of the Minneapolis Police Department. Trump had tweeted on his conversation with Minnesota's governor
Tim Walz
Timothy James Walz ( ; born April 6, 1964) is an American politician and retired educator. A member of the Democratic–Farmer–Labor Party (DFL), he has served as the 41st governor of Minnesota since 2019.
Born in West Point, Nebraska, Walz ...
about bringing
National Guard
National Guard is the name used by a wide variety of current and historical uniformed organizations in different countries. The original National Guard was formed during the French Revolution around a cadre of defectors from the French Guards.
Nat ...
to stop the riots, but concluded with the statement, "Any difficulty and we will assume control but, when the looting starts, the shooting starts", a phrase
attached to Miami Police Chief Walter E. Headley to deal with violent riots in 1967. After internal review, Twitter marked the message with a "public interest notice" that deemed it "glorified violence", which they would normally remove for violating the site's terms, but stated to journalists that they "have kept the Tweet on Twitter because it is important that the public still be able to see the Tweet given its relevance to ongoing matters of public importance."
Following Twitter's marking of his May 28 tweet, Trump said in another tweet that due to Twitter's actions, "Section 230 should be revoked by Congress. Until then, it will be regulated!"
By June 2, 2020, the
Center for Democracy & Technology filed a lawsuit in the
United States District Court for the District of Columbia
The United States District Court for the District of Columbia (in case citations, D.D.C.) is a federal district court in the District of Columbia. It also occasionally handles (jointly with the United States District Court for the District of ...
seeking preliminary and permanent injunction from the EO from being enforced, asserting that the EO created a
chilling effect
In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. A chilling effect may be caused by legal actions such as the passing of a law, the ...
on free speech since it puts all hosts of third-party content "on notice that content moderation decisions with which the government disagrees could produce penalties and retributive actions, including stripping them of Section 230's protections".
The Secretary of Commerce via the NTIA sent a petition with a proposed rule to the FCC on July 27, 2020, as the first stage of executing the EO. FCC chair
Ajit Pai
Ajit Varadaraj Pai (; born January 10, 1973) is an American lawyer who served as chairman of the U.S. Federal Communications Commission (FCC) from 2017 to 2021. He has been a partner at the private-equity firm Searchlight Capital since April 20 ...
stated in October 2020 that after the Commission reviewed what authority they have over Section 230 that the FCC will proceed with putting forth their proposed rules to clarify Section 230 on October 15, 2020. Pai's announcement, which came shortly after Trump again called for Section 230 revisions after asserting Big Tech was purposely hiding a
reporting of leaked documents around Hunter Biden, Joe Biden's son, was criticized by the Democratic FCC commissioners
Geoffrey Starks and
Jessica Rosenworcel
Jessica Rosenworcel (born July 12, 1971) is an American attorney serving as a member and List of chairmen of the Federal Communications Commission, chairwoman of the Federal Communications Commission (FCC). She originally served on the FCC from M ...
and the tech industry, with Rosenworcel stating "The FCC has no business being the president's speech police."
A second lawsuit against the EO was filed by activist groups including
Rock the Vote
Rock the Vote is a non-profit progressive-aligned organization in the United States whose stated mission is "to engage and build the political power of young Americans."
The organization was founded in 1990 by Virgin Records America Co-Chairman ...
and
Free Press on August 27, 2020, after Twitter had flagged another of Trump's tweets for misinformation related to mail-in voting fraud. The lawsuit stated that should the EO be enforced, Twitter would not have been able to fact-check tweets like Trump's as misleading, thus allowing the President or other government officials to intentionally distribute misinformation to citizens.
President Biden rescinded the EO on May 14, 2021, along with several of Trump's other orders.
Subsequent events
Following the
November election, Trump has made numerous claims on his social media accounts contesting the results, including claims of fraud. Twitter and other social media companies have marked these posts as potentially misleading, similar to previous posts Trump has made. As a result, Trump threatened to veto the
defense spending bill for 2021 if it did not contain language to repeal Section 230. Trump made good on his promise, vetoing the spending bill on December 23, 2020, in part for not containing a repeal of Section 230. The House voted to overturn the veto on December 28, 322–87, sending the bill to the Senate to vote to overturn. The Senate similarly voted to override the veto on January 1, 2021, without adding any Section 230 provisions.
During this, Trump urged Congress to expand the COVID-19 relief payments in the
Consolidated Appropriations Act, 2021
The Consolidated Appropriations Act, 2021 () is a $2.3trillion spending bill that combines $900 billion in stimulus relief for the COVID-19 pandemic in the United States with a $1.4trillion omnibus spending bill for the 2021 federal fiscal yea ...
that he had signed into law on December 27, 2020, but also stated that they should address the Section 230 repeal and other matters that were not addressed in the defense bill. The Senate majority leader
Mitch McConnell
Addison Mitchell McConnell III (born February 20, 1942) is an American politician and retired attorney serving as the senior United States senator from Kentucky and the Senate minority leader since 2021. Currently in his seventh term, McConne ...
stated on December 28 that he would bring legislation later that week that would include the expanded COVID-19 relief along with legislation to deal with Section 230, as outlined by Trump. Ultimately, no additional legislation was introduced.
In the wake of the
2021 United States Capitol attack
On January 6, 2021, following the defeat of then-U.S. President Donald Trump in the 2020 presidential election, a mob of his supporters attacked the United States Capitol Building in Washington, D.C. The mob was seeking to keep Trump in pow ...
on January 6, 2021, Pai stated that he would not be seeking any Section 230 reform before his prior planned resignation from office on January 20, 2021. Pai stated that this was mostly due to the lack of time to implement such rule making before his resignation, but also said that he would not "second-guess those decisions" of social media networks under Section 230 to block some of Trump's messages from January 6 that contributed to the violence. In the days that followed, Twitter, Facebook, and other social media services blocked or banned Trump's accounts claiming his speech during and after the riot was inciting further violence. These actions were supported by politicians, but led to renewed calls by Democrat leaders to reconsider Section 230, as these politicians believed that Section 230 led the companies to fail to take any preemptive action against the people who had planned and executed the Capitol riots. Separately, Trump filed class-action lawsuits against Twitter, Facebook, and YouTube in July 2021 related to his bans from the January 2021 period, claiming their actions were unjustifable, and claiming that Section 230 was unconstitutional. Trump's lawsuit against Twitter was dismissed by a federal judge in May 2022, stating that the suit's First Amendment claims were inactionable against non-government groups like Twitter, though allowed an amended claim to be filed.
In March 2021, Facebook's Mark Zuckerberg, Alphabet's Sundar Pichai, and Twitter's Jack Dorsey were asked to testify to the
House Committee on Energy and Commerce
The Committee on Energy and Commerce is one of the oldest standing committees of the United States House of Representatives. Established in 1795, it has operated continuously—with various name changes and jurisdictional changes—for more than ...
relating to the role of social media in promoting extremism and misinformation following the 2020 election; of which Section 230 was expected to be a topic. Prior to the event, Zuckerberg proposed an alternate change to Section 230 compared to previously proposed bills. Zuckerberg stated that it would be costly and impractical for social media companies to traffic all problematic material, and instead it would be better to tie Section 230 liability protection to companies that have demonstrated that they have mechanisms in place to remove this material once it is identified.
In July 2021, Democratic senators
Amy Klobuchar
Amy Jean Klobuchar ( ; born May 25, 1960) is an American lawyer and politician serving as the senior United States senator from Minnesota, a seat she has held since 2007. A member of the Minnesota Democratic–Farmer–Labor Party (DFL), Minne ...
and
Ben Ray Luján
Ben Ray Luján ( ; born June 7, 1972) is an American politician who has served as the junior United States senator from New Mexico since 2021. He served as the U.S. representative for from 2009 to 2021 and the assistant House Democratic leader ...
introduced the ''Health Misinformation Act'', which is intended primarily to combat
COVID-19 misinformation
False information, including intentional disinformation and conspiracy theories, about the scale of the COVID-19 pandemic and the origin, prevention, diagnosis, and treatment of the disease has been spread through social media, text messaging ...
. It would add a carveout to Section 230 to make companies liable for the publication of "health misinformation" during a "
public health emergency
In public relations and communication science, publics are groups of individual people, and the public (a.k.a. the general public) is the totality of such groupings. This is a different concept to the sociological concept of the ''Öffentlichkei ...
" — as established by the
Department of Health and Human Services
The United States Department of Health and Human Services (HHS) is a cabinet-level executive branch department of the U.S. federal government created to protect the health of all Americans and providing essential human services. Its motto is " ...
— if the content is promoted to users via algorithmic decisions.
Justice Against Malicious Algorithms Act
Following
Frances Haugen
Frances Haugen (born 1983 or 1984) is an American data engineer and scientist, product manager, and whistleblower. She disclosed tens of thousands of Facebook's internal documents to the Securities and Exchange Commission and ''The Wall Street Jo ...
's testimony to Congress that related to her
whistleblowing
A whistleblower (also written as whistle-blower or whistle blower) is a person, often an employee, who reveals information about activity within a private or public organization that is deemed illegal, immoral, illicit, unsafe or fraudulent. Whi ...
on Facebook's internal handling of content, House Democrats
Anna Eshoo
Anna A. Eshoo ( ; née Georges; born December 13, 1942) is an American politician serving as the U.S. representative from . She is a member of the Democratic Party. The district, numbered as the 14th district from 1993 to 2013, is based in Silico ...
,
Frank Pallone Jr.,
Mike Doyle Michael, Mick or Mike Doyle may refer to:
Politics
* Michael Doyle (Irish politician), Irish Farmers' Party politician from Wexford, TD from 1922 to 1927
*Michael Doyle, alleged member of the Molly Maguires
*Mike Doyle (American politician) (born ...
, and
Jan Schakowsky
Janice Schakowsky ( ; née Danoff; born May 26, 1944) is an American politician who has served as the United States House of Representatives, U.S. representative from since 1999. She is a member of the Democratic Party (United States), Democrat ...
introduced the "Justice Against Malicious Algorithms Act" in October 2021, which is in committee a
H.R.5596 The bill would remove Section 230 protections for service providers related to personalized
recommendation algorithms that present content to users if those algorithms knowingly or recklessly deliver content that contributes to physical or severe emotional injury. ''“The last few years have proven that the more outrageous and extremist content social media platforms promote, the more engagement and advertising dollars they rake in'',” said Representative Frank Pallone Jr., the chairman of the Energy and Commerce Committee. “''By now it’s painfully clear that neither the market nor public pressure will stop social media companies from elevating disinformation and extremism, so we have no choice but to legislate, and now it’s a question of how best to do it'',” he added.
State laws
= Florida
=
The state of Florida (predominantly Republican after the 2020 election) passed its "deplatforming" Senate Bill 7072 in May 2021, which had been proposed in February 2021 after Trump had been banned from several social media sites. SB 7072 prevents social media companies from knowingly blocking or banning politicians, and grants the
Florida Elections Commission
The Florida Election Commission (FEC) is an organisation set up in 1973 to enforce campaign finance laws in the United States' state of Florida. "The commission is composed of nine members appointed by the governor
A governor is an administrat ...
the ability to fine these companies for knowing violations, with fines as high as per day for state-level politicians. The bill exempts companies that own theme parks or other large venues within the state, thus would exempt companies such as
Disney
The Walt Disney Company, commonly known as Disney (), is an American multinational mass media and entertainment conglomerate headquartered at the Walt Disney Studios complex in Burbank, California. Disney was originally founded on October ...
whose parks provide a significant tax revenue to the state. The
Computer & Communications Industry Association (CCIA) and NetChoice filed suit against the state to block enforcement of the law, in Netchoice v. Moody, asserting that the law violated the First Amendment rights of private companies. Judge
Robert Lewis Hinkle of the
issued a preliminary injunction against the law on June 30, 2021, stating that "The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate governmental interest", and further that the law "discriminates on its face among otherwise identical speakers".
= Texas
=
Texas H.B. 20, enacted in September 2021, intended to prevent large social media providers from banning or demonetizing their users based on the user's viewpoint, including for views expressed outside of the social media platform, as well as to increase transparency in how these providers moderate content. The CCIA and NetChoice filed suit to prevent enforcement of the law in
NetChoice v. Paxton. A federal district judge placed an injunction on this law in December 2021, stating that the law's "prohibitions on 'censorship' and constraints on how social media platforms disseminate content violate the First Amendment". However, the
Fifth Circuit
The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a United States federal court, federal court with appellate jurisdiction over the United States district court, district courts in the following United Stat ...
reversed the injunction on a 2–1 order without yet ruling on the merits of the case in May 2022, effectively allowing the Texas law to come into effect. The CCIA and NetChoice appealed the Fifth Circuit decision directly to the U.S. Supreme Court seeking an emergency injunction to block the law. They argued that regulations on how social media platforms moderate users' content may prevent them from moderating at all in certain situations and thus force them to publish material they find objectionable, an outcome that would violate the social media platforms' First Amendment rights.
On May 31, 2022, the Supreme Court restored the injunction by court order (with four Justices,
Samuel Alito
Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George W. Bush on October 31, 2005, and has served ...
,
Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
,
Elena Kagan
Elena Kagan ( ; born April 28, 1960) is an American lawyer who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 10, 2010, and has served since August 7, 2010. Kagan ...
, and
Neil Gorsuch
Neil McGill Gorsuch ( ; born August 29, 1967) is an American lawyer and judge who serves as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on January 31, 2017, and has served since ...
dissenting) while lower court litigation continued. The Fifth Circuit reversed the district court ruling in September 2022, with Judge
Andy Oldham
Andrew Stephen Oldham (born 1978) is a United States circuit judge of the United States Court of Appeals for the Fifth Circuit and former General Counsel to Texas Governor Greg Abbott.
Education
Oldham graduated from the University of Virg ...
stating in the majority opinion, "Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say."
The decision creates a
circuit split
In United States federal courts, a circuit split occurs when two or more different circuit courts of appeals provide conflicting rulings on the same legal issue. The existence of a circuit split is one of the factors that the Supreme Court of ...
with the potential to be heard by the Supreme Court.
The Fifth Circuit agreed to rejoin enforcement if the law in October 2022 while several tech companies petitioned the case to the Supreme Court.
= California
=
Case law
Numerous cases involving Section 230 have been heard in the judiciary system since its introduction, many which are rote applications of Section 230.
The following is a partial list of legal cases that have been established as
case law
Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...
that have influenced the interpretation of Section 230 in subsequent cases or have led to new legislation around Section 230.
Defamatory information
; ''Zeran v. AOL'', 129 F.3d 327 (4th Cir. 1997).
: Immunity was ''upheld'' against claims that
AOL
AOL (stylized as Aol., formerly a company known as AOL Inc. and originally known as America Online) is an American web portal and online service provider based in New York City. It is a brand marketed by the current incarnation of Yahoo (2017 ...
unreasonably delayed in removing defamatory messages posted by third party, failed to post retractions, and failed to screen for similar postings.
; ''Blumenthal v.
Drudge'', 992 F. Supp. 44, 49–53 (D.D.C. 1998).
: The court ''upheld'' AOL's immunity from liability for defamation. AOL's agreement with the contractor allowing AOL to modify or remove such content did not make AOL the "information content provider" because the content was created by an independent contractor. The Court noted that Congress made a policy choice by "providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others."
; ''
Carafano v. Metrosplash.com'', 339 F.3d 1119 (9th Cir. 2003).
: The court ''upheld'' immunity for an Internet dating service provider from liability stemming from third party's submission of a false profile. The plaintiff,
Carafano, claimed the false profile defamed her, but because the content was created by a third party, the website was immune, even though it had provided multiple choice selections to aid profile creation.
; ''Batzel v. Smith'', 333 F.3d 1018 (9th Cir. 2003).
: Immunity was ''upheld'' for a website operator for distributing an email to a listserv where the plaintiff claimed the email was defamatory. Though there was a question as to whether the information provider intended to send the email to the listserv, the Court decided that for determining the liability of the service provider, "the focus should be not on the information provider's intentions or knowledge when transmitting content but, instead, on the service provider's or user's reasonable perception of those intentions or knowledge." The Court found immunity proper "under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other 'interactive computer service'."
; ''Green v. AOL'', 318 F.3d 465 (3rd Cir. 2003).
: The court ''upheld'' immunity for AOL against allegations of negligence. Green claimed AOL failed to adequately police its services and allowed third parties to defame him and inflict intentional emotional distress. The court rejected these arguments because holding AOL negligent in promulgating harmful content would be equivalent to holding AOL "liable for decisions relating to the monitoring, screening, and deletion of content from its network -- actions quintessentially related to a publisher's role."
; ''
Barrett v. Rosenthal
''Barrett v. Rosenthal'', 40 Cal.4th 33 (2006),, 146 P.3d 510, 51 Cal.Rptr.3d 55 (Cal. Sup. Ct., November 20, 2006). Supreme Court of the State of California, Alameda County, ''Barrett v. Rosenthal: Court Opinion'', Ct.App. 1/2 A096451. was a Ca ...
'', 40 Cal. 4th 33 (2006).
: Immunity was ''upheld'' for an individual internet user from liability for republication of defamatory statements on a listserv. The court found the defendant to be a "user of interactive computer services" and thus immune from liability for posting information passed to her by the author.
; ''MCW, Inc. v. badbusinessbureau.com(RipOff Report/Ed Magedson/XCENTRIC Ventures LLC)'' 2004 WL 833595, No. Civ.A.3:02-CV-2727-G (N.D. Tex. April 19, 2004).
: The court ''rejected'' the defendant's motion to dismiss on the grounds of Section 230 immunity, ruling that the plaintiff's allegations that the defendants wrote disparaging report titles and headings, and themselves wrote disparaging editorial messages about the plaintiff, rendered them information content providers. The Web site, www.badbusinessbureau.com, allows users to upload "reports" containing complaints about businesses they have dealt with.
; ''Hy Cite Corp. v. badbusinessbureau.com (RipOff Report/Ed Magedson/XCENTRIC Ventures LLC)'', 418 F. Supp. 2d 1142 (D. Ariz. 2005).
[''Hy Cite Corp. v. badbusinessbureau.com'']
418 F. Supp. 2d 1142
(D. Ariz. 2005).
: The court ''rejected'' immunity and found the defendant was an "information content provider" under Section 230 using much of the same reasoning as the ''MCW'' case.
; ''
Barnes v. Yahoo!, Inc.'' 570
F.3d
The ''Federal Reporter'' () is a case law reporter in the United States that is published by West Publishing and a part of the National Reporter System. It begins with cases decided in 1880; pre-1880 cases were later retroactively compiled by We ...
br>
1096(9th Cir. 2009)
: The court ''rejected'' immunity for the defendant when failing to uphold a promissory
estoppel
Estoppel is a judicial device in common law legal systems whereby a court may prevent or "estop" a person from making assertions or from going back on his or her word; the person being sanctioned is "estopped". Estoppel may prevent someone from ...
claim related to third-party content that they were otherwise immune from; in this case, Yahoo! had promised to remove nude photos of the plaintiff placed maliciously on the site by an ex-partner but had failed to do so. While the Ninth Circuit ultimately dismissed the case since Yahoo! would not have been liable for the photos under Section 230, their promissory estoppel makes them a "publisher or speaker" under Section 230.
False information
; ''Gentry v. eBay, Inc.'', 99 Cal. App. 4th 816, 830 (2002).
:
eBay
eBay Inc. ( ) is an American multinational e-commerce company based in San Jose, California, that facilitates consumer-to-consumer and business-to-consumer sales through its website. eBay was founded by Pierre Omidyar in 1995 and became a ...
's immunity was ''upheld'' for claims based on forged autograph sports items purchased on the auction site.
; ''Ben Ezra, Weinstein & Co. v. America Online'', 206 F.3d 980, 984–985 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000).
: Immunity for AOL was ''upheld'' against liability for a user's posting of incorrect stock information.
; ''
Goddard v. Google, Inc.
''Goddard v. Google, Inc.'', 640 F. Supp. 2d 1193 (N.D. Cal. Jul. 30, 2009), is a case in which Jenna Goddard ("Plaintiff") alleged that she and a class of similarly situated individuals were harmed by Google ("Defendant") as a result of clicking ...
'', C 08-2738 JF (PVT), 2008 WL 5245490, 2008 U.S. Dist. LEXIS 101890 (N.D. Cal. December 17, 2008).
: Immunity was ''upheld'' against claims of fraud and money laundering. Google was not responsible for misleading advertising created by third parties who bought space on Google's pages. The court found the creative pleading of money laundering did not cause the case to fall into the crime exception to Section 230 immunity.
; ''
Milgram v. Orbitz Worldwide, LLC'', ESX-C-142-09 (N.J. Super. Ct. August 26, 2010).
: Immunity for
Orbitz
Orbitz.com is a travel fare aggregator website and travel metasearch engine. The website is owned by Orbitz Worldwide, Inc., a subsidiary of Expedia Group. It is headquartered in the Citigroup Center, Chicago, Illinois.
Background
Origina ...
and
CheapTickets
CheapTickets is an online Travel agency, travel services company focusing on the leisure market, offering airline tickets, hotel and vacation rentals, rental cars, customized vacation packages, and cruise ship, cruises. CheapTickets was a wholly ow ...
was ''upheld'' for claims based on fraudulent ticket listings entered by third parties on ticket resale marketplaces.
; ''Herrick v. Grindr'', 765 F. App'x 586 (2nd Cir. 2019).
: The
Second Circuit
The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate jur ...
''upheld'' immunity for the
Grindr
Grindr () is a location-based social networking and online dating application targeted towards members of the gay, bisexual, transgender, and queer community.
It was one of the first geosocial apps for gay men when it launched in March 2009 an ...
dating app for
LGBT
' is an initialism that stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity.
The LGBT term is a ...
persons under Section 230 in regards to the misuse of false profiles created in the names of a real person. The plaintiff had broken up with a boyfriend, who later went onto Grindr to create multiple false profiles that presented the real-life identity and address of the plaintiff and as being available for sexual encounters, as well as having illegal drugs for sale. The plaintiff reported that over a thousand men had come to his house for sex and drugs, based on the communications with the fake profile, and he began to fear for his safety. He sued Grindr for not taking actions to block the false profiles after multiple requests. Grindr asserted Section 230 did not make them liable for the actions of the ex-boyfriend. This was agreed by the district court and the Second Circuit.
Sexually explicit content and minors
; ''Doe v.
America Online
AOL (stylized as Aol., formerly a company known as AOL Inc. and originally known as America Online) is an American web portal and online service provider based in New York City. It is a brand marketed by the current incarnation of Yahoo! Inc. ...
'', 783 So. 2d 1010, 1013–1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000).
: The court ''upheld'' immunity against state claims of negligence based on "chat room marketing" of obscene photographs of minor by a third party.
; ''Kathleen R. v. City of Livermore'', 87 Cal. App. 4th 684, 692 (2001).
: The California Court of Appeal ''upheld'' the immunity of a city from claims of waste of public funds, nuisance, premises liability, and denial of substantive due process. The plaintiff's child downloaded pornography from a public library's computers, which did not restrict access to minors. The court found the library was not responsible for the content of the internet and explicitly found that section 230(c)(1) immunity covers governmental entities and taxpayer causes of action.
; ''
Doe v. MySpace'', 528 F.3d 413 (5th Cir. 2008).
: The court ''upheld'' immunity for a social networking site from negligence and gross negligence liability for failing to institute safety measures to protect minors and failure to institute policies relating to age verification. The Does' daughter had lied about her age and communicated over MySpace with a man who later sexually assaulted her. In the court's view, the Does' allegations were "merely another way of claiming that MySpace was liable for publishing the communications."
; ''
Dart v. Craigslist, Inc.
'' Thomas Dart, Sheriff of Cook County v. Craigslist, Inc.'', 665 F. Supp. 2d 961 (N.D. Ill. Oct. 20, 2009), is a decision by the United States District Court for the Northern District of Illinois in which the court held that Craigslist, as an Int ...
'', 665 F. Supp. 2d 961 (N.D. Ill. October 20, 2009).
: The court ''upheld'' immunity for Craigslist against a county sheriff's claims that its "erotic services" section constituted a public nuisance because it caused or induced prostitution.
; ''Backpage.com v. McKenna, et al.,'' CASE NO. C12-954-RSM
; ''Backpage.com LLC v Cooper'', Case # 12-cv-00654
S1ref name="backpage-v-cooper" />
; ''Backpage.com LLC v Hoffman et al.,'' Civil Action No. 13-cv-03952 (DMC) (JAD)
: The court ''upheld'' immunity for Backpage in contesting a Washington state law (SB6251)
that would have made providers of third-party content online liable for any crimes related to a minor in Washington state. The states of Tennessee and New Jersey later passed similar legislation. Backpage argued that the laws violated Section 230, the Commerce Clause of the United States Constitution, and the First and Fifth Amendments.
In all three cases the courts granted Backpage permanent injunctive relief and awarded them attorney's fees.
; ''Backpage.com v. Dart''., CASE NO. 15-3047
: The court ''ruled in favor'' of Backpage after Sheriff Tom Dart of Cook County, Illinois, a frequent critic of Backpage and its adult postings section, sent a letter on his official stationery to Visa and MasterCard demanding that these firms "immediately cease and desist" allowing the use of their credit cards to purchase ads on Backpage. Within two days both companies withdrew their services from Backpage.
Backpage filed a lawsuit asking for a temporary restraining order and preliminary injunction against Dart granting Backpage relief and return to the status quo prior to Dart sending the letter. Backpage alleged that Dart's actions were unconstitutional, violating the First and Fourteenth Amendments to the US Constitution as well as Section 230 of the CDA. Backpage asked for Dart to retract his "cease and desist" letters.
After initially being denied the injunctive relief by a lower court, the Seventh Circuit U.S. Court of Appeals reversed that decision and directed that a permanent injunction be issued enjoining Dart and his office from taking any actions "to coerce or threaten credit card companies...with sanctions intended to ban credit card or other financial services from being provided to Backpage.com."
The court cited Section 230 as part of its decision, and the Supreme Court declined to hear the petition to this case. However, this decision, in part, led to the passage of the FOSTA-SESTA Acts, and subsequently the dismissal of Backpage's case after federal enforcement agencies had seized Backpage's assets for violating FOSTA-SESTA.
Discriminatory housing ads
; ''
Chicago Lawyers' Committee For Civil Rights Under Law, Inc. v. Craigslist, Inc.'', 519 F.3d 666 (7th Cir. 2008).
: The court ''upheld'' immunity for Craigslist against Fair Housing Act claims based on discriminatory statements in postings on the classifieds website by third party users.
; ''Fair Housing Council of San Fernando Valley v. Roommates.com, LLC'', 521 F.3d 1157 (9th Cir. 2008) (''en banc'').
: The
Ninth Circuit Court of Appeals
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District o ...
''rejected'' immunity for the Roommates.com roommate matching service for discrimination claims brought under the federal Fair Housing Act and California housing discrimination laws. The court concluded that the manner in which the service elicited required information from users concerning their roommate preferences (by having dropdowns specifying gender, presence of children, and sexual orientation), and the manner in which it utilized that information in generating roommate matches (by eliminating profiles that did not match user specifications), that the service was an "information content provider" and thus liable for the discrimination claims. The court ''upheld'' immunity for the descriptions posted by users in the "Additional Comments" section because these were entirely created by users.
Threats
; ''Delfino v.
Agilent Technologies
Agilent Technologies, Inc. is an American life sciences company that provides instruments, software, services, and consumables for the entire laboratory workflow. Its global headquarters is located in Santa Clara, California. Agilent was establi ...
'', 145 Cal. App. 4th 790 (2006), cert denied, 128 S. Ct. 98 (2007).
: A California Appellate Court unanimously ''upheld'' immunity from state tort claims arising from an employee's use of the employer's e-mail system to send threatening messages. The court concluded that an employer that provides Internet access to its employees qualifies as a "provider ... of an interactive service."
Failure to warn
; ''
Jane Doe No. 14 v. Internet Brands, Inc.
''Jane Doe No. 14 v. Internet Brands, Inc.'', 767 F.3d 894 (2014), is a 2014 ruling at the Ninth Circuit Court of Appeals over the legal liability of an Internet service provider for criminal offenses committed by its users. The ultimate ruling ...
'', No. 12-56638 (9th Cir. September 17, 2014).
: The Ninth Circuit Court of Appeals ''rejected'' immunity for claims of negligence under California law.
: Doe filed a complaint against Internet Brands which alleged a "failure to warn" her of a known rape scheme, despite her relationship to them as a ModelMayhem.com member. They also had requisite knowledge to avoid future victimization of ModelMayhem.com users by warning users of online sexual predators. The Ninth Circuit Court of Appeals concluded that the Communications Decency Act did not bar the claim and remanded the case to the district court for further proceedings.
: In February 2015, the Ninth Circuit panel set aside its 2014 opinion and set the case for reargument. In May 2016, the panel again held that Doe's case could proceed.
Terrorism
; ''
Force v. Facebook, Inc.'', 934 F.3d 53 (2nd Cir. 2019).
: The Second Circuit ''upheld'' immunity in civil claims for service providers for hosting terrorism-related content created by users. Families, friends, and associates of several killed in
Hamas
Hamas (, ; , ; an acronym of , "Islamic Resistance Movement") is a Palestinian Sunni-Islamic fundamentalist, militant, and nationalist organization. It has a social service wing, Dawah, and a military wing, the Izz ad-Din al-Qassam Bri ...
attacks filed suit against Facebook under the United States' Anti-Terrorism Act, asserting that since Hamas members used Facebook to coordinate activities, Facebook was liable for its content. While previous rules at federal District and Circuit level have generally ruled against such cases, this decision in the Second Circuit was first to assert that Section 230 does apply even to acts related to terrorism that may be posted by users of service providers, thus dismissing the suit against Facebook. The Second Circuit ruled that the various algorithms Facebook for its
recommender system
A recommender system, or a recommendation system (sometimes replacing 'system' with a synonym such as platform or engine), is a subclass of information filtering system that provide suggestions for items that are most pertinent to a particular u ...
remain as part of the role of the distributor of the content and not the publisher, since these automated tools were essentially neutral.
The Supreme Court declined to hear the case.
: Judge
Robert Katzman gave a 35 page dissenting opinion in the Force case, which was cited by judge
Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
in a suggestion to colleagues in 2020 to reconsider the scope of immunity granted under section 230.
;''
Gonzalez v. Google LLC'' (9th Cir. 2021)
:This case is pending at the Supreme Court. Currently the Ninth Circuit ''upheld'' that
YouTube
YouTube is a global online video platform, online video sharing and social media, social media platform headquartered in San Bruno, California. It was launched on February 14, 2005, by Steve Chen, Chad Hurley, and Jawed Karim. It is owned by ...
's
recommender system
A recommender system, or a recommendation system (sometimes replacing 'system' with a synonym such as platform or engine), is a subclass of information filtering system that provide suggestions for items that are most pertinent to a particular u ...
for videos was covered by Section 230's liability protections in relation to videos posted by
ISIS
Isis (; ''Ēse''; ; Meroitic: ''Wos'' 'a''or ''Wusa''; Phoenician: 𐤀𐤎, romanized: ʾs) was a major goddess in ancient Egyptian religion whose worship spread throughout the Greco-Roman world. Isis was first mentioned in the Old Kingd ...
. The petitioners argued that the recommender system is a type of moderation that would be outside the bounds of Section 230.
;''
Twitter, Inc. v. Taamneh'' (9th Cir. 2021)
:This case is pending at the Supreme Court. Currently the Ninth Circuit ''dismissed'' Section 230 immunity claims that Twitter had argued in regards to its services being used by terrorists, and instead considered Twitter to be liable for aiding terrorism under the
Antiterrorism and Effective Death Penalty Act of 1996
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), , was introduced to the United States Congress in April 1995 as a Senate Bill (). The bill was passed with broad bipartisan support by Congress in response to the bombings of th ...
amended by the
Justice Against Sponsors of Terrorism Act
The Justice Against Sponsors of Terrorism Act (JASTA) () is a law enacted by the United States Congress that narrows the scope of the legal doctrine of foreign sovereign immunity. It amends the Foreign Sovereign Immunities Act and the Anti-Ter ...
.
Similar legislation in other countries
European Union
Directive 2000/31/EC,
the e-Commerce Directive, establishes a safe harbor regime for hosting providers:
* Article 14 establishes that hosting providers are not responsible for the content they host as long as (1) the acts in question are neutral intermediary acts of a mere technical, automatic and passive capacity; (2) they are not informed of its illegal character, and (3) they act promptly to remove or disable access to the material when informed of it.
* Article 15 precludes member states from imposing general obligations to monitor hosted content for potential illegal activities.
The updated
Directive on Copyright in the Digital Single Market
The Directive on Copyright in the Digital Single Market, formally the Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96 ...
(Directive 2019/790) Article 17 makes providers liable if they fail to take "effective and proportionate measures" to prevent users from uploading certain copyright violations and do not respond immediately to takedown requests.
Australia
In ''Dow Jones & Company Inc v Gutnick'', the High Court of Australia treated defamatory material on a server outside Australia as having been published in Australia when it is downloaded or read by someone in Australia.
''Gorton v Australian Broadcasting Commission & Anor'' (1973) 1 ACTR 6
Under the ''Defamation Act 2005'' (NSW), s 32, a defence to defamation is that the defendant neither knew, nor ought reasonably to have known of the defamation, and the lack of knowledge was not due to the defendant's negligence.
Italy
The
Electronic Commerce Directive 2000
The e-Commerce Directive, adopted in 2000, sets up an Internal Market framework for online services. Its aim is to remove obstacles to cross-border online services in the EU internal market and provide legal certainty for businesses and consumer ...
(e-Commerce Directive) has been implemented in Italy by means of Legislative Decree no. 70 of 2003. The provisions provided by Italy are substantially in line with those provided at the EU level. However, at the beginning, the Italian case-law had drawn a line between so-called "active" hosting providers and "passive" Internet Service Providers, arguing that "active" Internet Service Providers would not benefit from the liability exception provided by Legislative Decree no. 70. According to that case-law, an ISP is deemed to be active whenever it carries out operations on the content provided by the user, such as in case it modifies the content or makes any enrichment of the content. Under certain cases, courts have held ISPs liable for the user's content for the mere facts that such content was somehow organised or enriched by the ISP (e.g. by organizing the contents in libraries or categories, etc. or monetised by showing ads).
New Zealand
Failing to investigate the material or to make inquiries of the user concerned may amount to negligence in this context: ''Jensen v Clark''
982
Year 982 ( CMLXXXII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar.
Events
By place Europe
* Summer – Emperor Otto II (the Red) assembles an imperial expeditionary force at Tar ...
2 NZLR 268.
France
Directive 2000/31/CE was transposed into the
LCEN law. Article 6 of the law establishes safe haven for hosting provider as long as they follow certain rules.
In ''
LICRA vs. Yahoo!'', the High Court ordered Yahoo! to take affirmative steps to filter out Nazi memorabilia from its auction site. Yahoo!, Inc. and its then president
Timothy Koogle
Timothy Andrew Koogle (born July 5, 1951) is an American executive who served as the first CEO and President of web company Yahoo! between 1995 and 2001. He served as the company's chairman from 1999 to 2003. He was named to the Top 25 Executives ...
were also criminally charged, but acquitted.
Germany
In 1997,
Felix Somm, the former managing director for CompuServe Germany, was charged with violating German
child pornography
Child pornography (also called CP, child sexual abuse material, CSAM, child porn, or kiddie porn) is pornography that unlawfully exploits children for sexual stimulation. It may be produced with the direct involvement or sexual assault of a chi ...
laws because of the material CompuServe's network was carrying into Germany. He was convicted and sentenced to two years probation on May 28, 1998. He was cleared on appeal on November 17, 1999.
The Oberlandesgericht (OLG) Cologne, an appellate court, found that an online auctioneer does not have an active duty to check for counterfeit goods (Az 6 U 12/01).
In one example, the first-instance district court of Hamburg issued a temporary restraining order requiring message board operator Universal Boards to review all comments before they can be posted to prevent the publication of messages inciting others to download harmful files. The court reasoned that "the publishing house must be held liable for spreading such material in the forum, regardless of whether it was aware of the content."
United Kingdom
: ''Also see:''
Defamation Act 2013
The Defamation Act 2013 (c 26) is an Act of the Parliament of the United Kingdom, which reformed English defamation law on issues of the right to freedom of expression and the protection of reputation. It also comprised a response to perception ...
.
The laws of libel and defamation will treat a disseminator of information as having "published" material posted by a user, and the onus will then be on a defendant to prove that it did not know the publication was defamatory and was not negligent in failing to know: ''Goldsmith v Sperrings Ltd'' (1977) 2 All ER 566; ''Vizetelly v Mudie's Select Library Ltd'' (1900) 2 QB 170; ''Emmens v Pottle & Ors'' (1885) 16 QBD 354.
In an action against a website operator, on a statement posted on the website, it is a defence to show that it was not the operator who posted the statement on the website. The defence is defeated if it was not possible for the claimant to identify the person who posted the statement, or the claimant gave the operator a notice of complaint and the operator failed to respond in accordance with regulations.
See also
*
Collateral censorship
Notes
References
Bibliography
*
*
* Margaret Jane Radin et al., ''Internet Commerce: The Emerging Legal Framework'' 1091-1136 (2nd ed. 2006)
*
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. Drafted by a UN committee chaired by Eleanor Roosevelt, i ...
- Article 12
*
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedo ...
- Article 17 (1), (2)
U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992).Section II (5)
Further reading
*
External links
*
Full text of the Telecommunications Act of 1996
Citizen Media Law Project's primer on Section 230*
Electronic Frontier Foundation
The Electronic Frontier Foundation (EFF) is an international non-profit digital rights group based in San Francisco, California. The foundation was formed on 10 July 1990 by John Gilmore, John Perry Barlow and Mitch Kapor to promote Internet ci ...
FAQon Section 230
Full text of Executive Order 13925Wikimania 2006: Section 230: At the Gates between Liability for Harmful Speech and Wikipediaaudio lecture.
{{DEFAULTSORT:Section 230 Of The Communications Decency Act
Acts of the 104th United States Congress
United States federal computing legislation