The Communications Decency Act, 47 U.S.C. § 230 (“Section 230”), has widely been regarded as a valuable tool to protecting the freedom of expression on the internet.
Section 230 states that providers or users of a computer service will not be treated as the publisher of any speech or information provided on its platform. In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do.
Section 230 has been used by content providers such as Youtube, Twitter, and Instagram to display third-party material from millions of people. Websites such as Yelp! and other blog sites are not liable for any comments or posts made on their platform. Because of Section 230, these content providers are not forced to censor material in fear of being held liable for the speech of others. Rather, proponents of Section 230 argue that it encourages content providers to allow users to post and disseminate their speech.
Section 230 critics argue that the law’s broad protections allow powerful companies to ignore real harm to users. For example, Facebook has come under fire for allowing blatantly false and even violent posts concerning the recent election.
Section 230 reform may be one of the only points of agreement between the incoming Biden Administration and outgoing Trump administration. Although not a priority, President-Elect Biden has stated an interest in repealing absolute immunity for content providers that knowingly propagate falsehoods and violence. President Trump has gone so far as to claim that Section 230 immunity for content providers was a threat to national security and election integrity due to alleged bias against conservative politicians. President Trump has stated that he will veto the U.S. Defense Bill, legislation regarding the funding of the armed forces, if lawmakers do not repeal Section 230. Quite obviously, this is heavily opposed by technology companies and online content providers alike. They claim that Section 230 immunity allows them to protect unpopular speech without government interference.
There seems to be bipartisan consensus that Section 230 immunity should be curtailed. It seems reform is imminent although the extent of it unknown.
by Palak Patel
palak@jayaramlaw.com