Section 230: What Is It and Why Is Everyone Talking About It?
Section 230 of the Communications Decency Act of 1996 (“Section 230”), 47 U.S.C. § 230(c), has garnered significant attention in the media in recent months. But what is Section 230 and why are both President Trump and President-Elect Biden talking about its repeal?
Section 230 is commonly referred to as the 26 words that created the internet. It ensures that an online platform can host and transmit third-party content without the liability that attaches to a publisher or speaker under defamation law, and encourages self-regulation by allowing online platforms to remove offensive content in good faith from their platforms. 47 U.S.C. §§ 230(c)(1)-(2). Yelp, Facebook, Twitter, and Wikipedia have flourished in part because of the simultaneous protection from liability for defamatory statements posted by third-party users and from the removal of harmful or discriminatory content.
Some believe that repealing Section 230 is long overdue, because what started out as a law meant to reward online platforms that remove harmful content in good faith has transformed into a broad liability shield. In one circumstance, that protection extended even to an online platform that recommended terrorist content to a user based on that user’s preferences. See Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019).
Others argue that the repeal of Section 230 would have many unintended consequences. Section 230 creates low barriers to entry in the small-tech space by protecting new entrants from liability for defamatory content. Eliminating that protection could create a high barrier to entry because new entrants would fear being held liable for third-party content, thereby stifling innovation. It could also require big-tech companies to use their resources to defend potential lawsuits rather than to improve their platforms. Lastly, repeal may also have a chilling effect on free speech, because it would become more efficient for online platforms to ban users who routinely post offensive content rather than to defend lawsuits regarding their posts.
What is most interesting is that the call to repeal Section 230 has found support on both sides of the aisle, albeit for different reasons. Republicans argue that online platforms have too much power to moderate content, whereas Democrats argue that online platforms are not doing enough to stop the spread of harmful content and misinformation.
Ultimately, policymakers must determine whether repeal is the best path forward or if the same policy goals could be accomplished by amending Section 230 to clarify ambiguities. It is highly likely that the new Congress sworn in this January will address Section 230. In the meantime, tech companies and practitioners will continue to rely on the judiciary to interpret the boundaries of Section 230.