{"id":4453,"date":"2021-07-08T18:20:20","date_gmt":"2021-07-08T18:20:20","guid":{"rendered":"https:\/\/revolutionsincommunication.com\/law\/?page_id=4453"},"modified":"2025-12-24T04:07:10","modified_gmt":"2025-12-24T04:07:10","slug":"section230","status":"publish","type":"page","link":"https:\/\/revolutionsincommunication.com\/law\/section230\/","title":{"rendered":"CDA Section 230 indemnity & responsibility"},"content":{"rendered":"
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Facebook whistleblower Frances Haugen testifies before a US Senate subcommittee Oct 5, 2021. (See section below)<\/p><\/div>\n<\/div>\n

The internet and web<\/strong> emerged from the vision of an\u00a0 improbable group of hackers, and not the work of tech\u00a0 companies or government programs. They\u00a0 hoped to build a system of free global\u00a0 communication.<\/p>\n

Transmission\u00a0 protocols, browsers that could read html code,\u00a0 and Apache\u00a0 server software were created and distributed at no cost to users. With a free structure, the hackers hoped content could also be free.<\/p>\n

That spirit of freedom is reflected in the preamble of\u00a0 Section 230 of the Telecommunications law (US Code Title 47<\/a>) which says the internet is\u00a0 “an extraordinary advance in the availability of educational and informational resources to our citizens.”\u00a0<\/em><\/span><\/p>\n

Sometimes called the “Magna Carta of the Internet,”\u00a0 Section 230 is the legal\u00a0 foundation of the world’s largest communications system.\u00a0 To understand why the foundation of that system is now controversial, it helps to understand its origin.<\/p>\n

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Regulating the emerging internet 1980s – 90s\u00a0<\/strong><\/span><\/h4>\n

In the late 1980s and early 1990s,\u00a0 when the internet was brand new, the average computer user would access text-only services with primitive modems through dial-up \u201cInternet Service Providers\u201d (ISPs).\u00a0 These ISPs were no more responsible for the content of internet communications than a telephone company would be for the content of a regular voice phone call.<\/p>\n

Often they would distribute media services that published the content, but just as often they would create those services and act as publishers.<\/p>\n

Traditional media — newspapers, magazines, radio, and television — have always been responsible for all content published and distributed. Responsibility for an advertisement published in the New York Times in 1960 was the issue in NY Times v Sullivan.<\/p>\n

But the unusual legal form of the new digital media soon became clear with two libel cases from the early 1990s:\u00a0 <\/span>Cubby v Compuserv<\/a> (1991) and <\/span>Stratton Oakmont v Prodigy<\/a> (1995)\u00a0 If an ISP or a content provider took any steps to edit or block some content, they were considered to be responsible for ALL of that content. If the ISP acted as a distributor and took a \u201chands off\u201d approach,\u00a0 without any editing whatsoever, they were NOT considered responsible for any content.\u00a0 \u00a0<\/span>And so, to be safe, the ISPs did nothing at all.<\/em><\/span><\/p>\n

\"\"<\/a>This lack of responsibility led to increasing concern over the new medium. One of the most alarming things was that pornographic videos were easily\u00a0 available to children, and a kind of\u00a0 moral panic took place, as seen in this July 3, 1995 Time Magazine cover.<\/p>\n

Congress reacted<\/strong> by passing the 1996 “<\/span>Communications Decency Act<\/a>”\u00a0 to regulate pornographic and indecent material on the internet. It became law but was immediately challenged as overly broad by the ACLU, and the law was defended by then-Attorney General Janet Reno.\u00a0 In Reno v ACLU,<\/a> the US Supreme Court upheld part of the law and struck down other parts.\u00a0 The part that survived — Section 230 of the CDA — was called the “good samaritan” provision because it protected private blocking and screening of offensive material.\u00a0 \u00a0\u00a0<\/span><\/p>\n

And so, after Reno v ACLU, if obscene or libelous or illegal materials were placed on a site by someone who didn’t work for the site (a third party), that company could remove those materials without risk of being sued.\u00a0 In other words, the law was meant to\u00a0 protect the social media company from lawsuits over third-party content. That’s why it was a “good samaritan” law, because it protected people who were trying to do the right thing.\u00a0 It was the third party, the one placing the materials online, who was supposed to bear the blame,\u00a0 take down offensive or libelous or illegal materials, and\/or pay the damages.\u00a0 \u00a0<\/span><\/p>\n

Section 230\u00a0 says, in part:<\/b><\/a>\u00a0 \u00a0<\/b><\/p>\n

(1) Treatment of publisher or speaker \u2014 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.<\/i><\/p>\n

(2) Civil liability \u2014 No provider or user of an interactive computer service shall be held liable on account of-<\/i><\/p>\n

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or<\/i><\/p>\n

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph 1.<\/i><\/p>\n

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Zeran v AOL: First internet libel test case:\u00a0\u00a0<\/strong><\/span><\/h4>\n

The first major test case, Zeran v AOL, 1997<\/a>,\u00a0 held that the internet service provider AOL was not\u00a0 \u00a0responsible for harms caused by false and malicious attacks on Kenneth Zeran through an\u00a0 AOL opinion chat. <\/span><\/p>\n

The libelous messages occurred a week after the April 19, 1995 bombing of the federal building in Oklahoma City that killed 168 people.\u00a0 An anonymous post advised people to “Visit Oklahoma — It’s a BLAST!” and to contact Zeran for t-shirts.\u00a0 \u00a0Zeran had nothing to do with the messages, and asked AOL to take them down.
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AOL took down the offending posts but declined to post retractions. The messages\u00a0 kept coming and soon drew widespread media attention, which harmed Zeran’s reputation and ability to work.<\/p>\n

The US Fourth District Court<\/a> said that AOL was not liable, and that Section 230 of the CDA “preempts a negligence cause of action against an interactive computer service provider arising from that provider’s distribution of allegedly defamatory material provided via its electronic bulletin board.”<\/p>\n

However, as the Internet became increasingly popular,\u00a0 the issue of moderation became a major problem<\/p>\n

Some obviously harmful content (for example libel, private facts, incitement to violence) did not have to be edited or controlled in any way. Many companies believed that trying to police the\u00a0 enormous flood of content coming through the Internet and the\u00a0 World Wide Web would be too expensive and therefore would hold back the development of promising new digital media.<\/p>\n

\u00a0Section 230 and media responsibility after Zeran<\/strong>\u00a0 \u00a0<\/span><\/h4>\n

Section 230<\/b>\u00a0 insulates ISPs and Social media like Facebook, Twitter, YouTube, TwitchTV, etc.\u00a0 from responsibility for violations of law in user-generated (third party) posts.\u00a0 The author of a Facebook post or the producer of a YouTube video is still responsible for violations of the law, but not the platforms like Facebook or YouTube.<\/p>\n

CDA Section 230 meant that ISPs and other platforms would be free to take down, edit, or re-prioritize third party posts, but that’s not the way it has worked out.\u00a0 Even when a video or a post is a clear violation of the ISPs own terms of service, under Section 230 it is under no obligation to take\u00a0 down objectionable material.\u00a0 \u00a0<\/b><\/p>\n

There are several minor exceptions: Fair housing laws and copyright laws. But these are relatively small issues compared to some of the vicious and outrageous third party posts in other areas.<\/p>\n

Most of these individual users can’t afford to be defendants in any kind of litigation. By the same token, a plaintiff will rarely recover legal costs, and so low-income intransigent libel defendants tend to face injunctions and criminal contempt charges for strongly held but inaccurate views.<\/p>\n

And so a side effect of democratizing digital media is that everday bar-room ranting can easily be transformed into criminal contempt.<\/p>\n

The controversy over Section 230 and social media\u00a0\u00a0<\/strong><\/span><\/h4>\n
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Criticism of blanket indemnification of social media companies includes:<\/p>\n<\/div>\n<\/div>\n

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