Section 230, which was annexed into the Communications Decency Act (CDA) by Congress in 1996, asserts that a provider or user of an interactive computer service, such as a social media platform, is not to be considered the publisher or speaker of information created by an information content provider. Immunity for interactive computer services under Section 230 essentially boils down to three things:
- 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.
Prior to Section 230, interactive computer services could be held liable, even if they only exercised editorial control, for the content posted by others who used the service. However, after Section 230 was passed, the court in Zeran v. America Online, Inc. held that an interactive computer service can be immune from liability, even if it knew that the posting was false and acted unreasonably under the circumstances. Furthermore, internet computer services can make editorial actions, such as simply selecting posts for publication or providing commentary (that by itself is not defamatory) on the content of a third party, without being held liable, so long as they do not create or develop the information in whole or in part. While Section 230 has been most known for being a defense to online defamation and invasion of privacy claims, the issue of Section 230 has been raised in other legal contexts, especially within the past couple of years.
- Products Liability
The Section 230 defense has also been brought in avoiding strict products liability lawsuits against Plaintiffs who faced harm from defective goods. The most common scenario is where consumers purchase an electronic good (from headlamps to hoverboards) from giant online retailers like Ebay and Amazon. Those products are faulty to the point that they can catch on fire or explode, causing physical injuries to people or serious damage to a person’s home or place of business.
In these types of suits, companies like Amazon and Ebay generally emphasize two things. The first is that cannot be held liable for failure to give warning, because the product description is provided by the seller that uses the online retailer, not the retailer itself. The second point that online retailers have generally made is that they cannot be held liable for strict products liability claims, because they do not fall within the chain of title for such claims. In other words, online retailers do not take title to such defective products, unlike a brick-and-mortar store, such as Walmart or Target. However, federal appellate courts in California and in Texas have seemed to reject such use of the Section 230 defense, and have instead held that such online retailers can be held liable for faulty products. There are a couple reasons for this. One is the increasing number of people who are shopping on the Internet. Lastly, although companies like Amazon do not take title to the goods in order to be considered a seller, they literally do everything that a seller would do, such as payment processing, packaging and shipping, warehouse storage, etc.
- Child Sex Trafficking
In 2018, President Donald J. Trump signed the Fight Online Sex Traffickers Act (FOSTA), which carved out an exception to Section 230 immunity with regards to civil and criminal charges of sex trafficking. The act dealt greatly with sex trafficking issues pertaining to classified ad sites, such as Craigslist and Backpage. However, this measure did not stop social media platforms from enabling the distribution of nonconsensual pornography, harassment, and child sexual abuse imagery. For instance, one federal lawsuit accuses the social media platform Twitter of being complicit in sex trafficking by knowingly distributing and profiting from child abuse of a minor after failing to take down a sexually exploitative video, until the Department of Homeland Security intervened. Additionally, Section 230 still provides safe haven to companies like Pornhub, who have been accused of profiting off of video of child rape, revenge porn, and egregious sexual abuse.
Last year, several senators created a bipartisan legislative effort to further amend Section 230. Under the Eliminating Abuse and Rampant Neglect of Interactive Technologies (EARN IT) Act, companies would have to “earn” the protection by showing that they are following the recommendations for combating child sexual exploitation laid out by a 16-person commission. Essentially, this would seem to reduce the incredible flexibility on content-moderation, which was criticized in Zeran and other cases, since the act would incentive interactive computer services to make diligent efforts in removing sexually exploitative content.
- Free Speech
Finally, Section 230 has viewed as a shield for big tech to censor speech that they deem offensive or contradictory with their political and social views. Public interest groups and free speech platforms, such as Parler and many others, have declared for Section 230 to be repealed and rewritten. Proponents believe that this will not only prevent big tech from having too much power, but also hold them accountable in effectively moderating the content on their platforms.