Section 230: The rule that shaped the internet

One of the most significant elements of internet law in the United States is Section 230 of the Communications Decency Act. The purpose of Section 230 is to give computer and internet companies the freedom to create content for their websites without worrying about legal repercussions. If internet service providers are held accountable for user-posted content, this might either: 

• Put businesses out of business due to ongoing legal disputes, or
• Encourage businesses to strictly police and censor user-posted information.

Such outcomes would stifle creative thinking and free communication on the internet. Several people attribute the success and level of social integration of social media firms, search engines, and cloud storage systems to Section 230.

In instances involving content published by third-party information content providers (ICPs), courts are prohibited from viewing interactive computer service providers as “publishers” by Section 230 of the Communications Decency Act. According to the language of Section 230(c)(1), 

“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.”

Interactive computer service providers and users (“ISPs”) are designated as intermediates under Section 230(c)(1), which shields them from liability for third-party content published on their services. Additionally, Section 230 gives ISPs additional control over content that is published on their platforms without deeming them to be the authors of the objectionable content or holding them responsible for third parties’ illegal content. In the absence of Section 230’s wide immunity, ISPs, including Google and social media platforms like Facebook, Twitter, and YouTube, might be held accountable for each message or post made while using their services. Because of this, allowing users to publish material on these websites would be exceedingly expensive. However, many of these services would cease to exist, and most websites would start severely limiting online expression.

In order to assess whether the CDA grants an ISP defendant immunity, courts apply a three-pronged test. 

• A user or provider of an interactive computer service is the first requirement for the defendant.
• Second, the defendant must be viewed in the plaintiff’s cause of action as the “publisher” or “speaker” of a damaging statement. 
• Finally, a different information content source than the defendant produced the detrimental material. The defendant is shielded from responsibility by the CDA if all three requirements are satisfied.

The law’s origins can be traced back to the 1950s when booksellers were subject to liability for doing so because such publications were considered to contain “obscenity,” which is not protected by the First Amendment. One case ultimately reached the Supreme Court, which decided that holding someone accountable for the content of another person had a “chilling effect.”

According to Jeff Kosseff, the author of “The Twenty-Six Words That Launched the Internet,” a book about Section 230, plaintiffs had to demonstrate that bookshop owners knew they were selling pornographic materials.

Go back a few decades to the emergence of commercial internet services like CompuServe and Prodigy. Both companies provided online forums, but Prodigy elected to moderate its in order to project a family-friendly image whereas CompuServe opted not to. CompuServe was sued over that, and the case was dismissed. Prodigy, however, got in trouble. The judge in their case ruled that “they exercised editorial control — so you’re more like a newspaper than a newsstand”. That didn’t sit well with politicians, who worried that the outcome would discourage newly forming internet companies from moderating at all and Section 230 was born.

Currently, two cases are going on in the United States Supreme court which will decide the future of this law, Firstly is Gonzalez v google, in this case, the Supreme Court will rule on whether Google, which owns YouTube, can be sued by the family of an American college student who died in a terrorist attack in Paris. According to the family, the video service’s algorithm aided extremists in disseminating their ideas.

Twitter v. Taamneh, the second case, also revolves around legal duty. It relates to a Jordanian national who was killed in Istanbul, Turkey.

Any modification to Section 230 is likely to have a significant impact on online speech globally. In the event that Section 230 is repealed, two outcomes are possible:

• Services may be more selective with their material.

For instance, a law was established in 2018 that made information that facilitates sex work exempt from Section 230. The “personals” section of the classified ad website Craigslist was eliminated after it was commandeered by those who used it for sex labour.

• Another potential is that social media platforms like Facebook, Twitter, YouTube, and others quit completely policing content on their platforms. But a lot of bad content might easily end up on unmoderated services.

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