The debate over “platform vs publisher” when it comes to section 230 has some people confused. The merits of Section 230 are also up for debate right now. There are dozens of bills in Congress right now that intend to repeal or amend Section 230.
Some people think that websites like Twitter should no longer be able to receive immunity under Section 230 because of their editorial decisions. Others want to modify Section 230 because platforms like Twitter and Facebook aren’t doing enough to protect users from online harassment or misinformation.
You’ve probably heard the term “section 230” before, but do you know what it actually means? This section of the Communications Decency Act protects online platforms and publishers from being held liable for content that their users post. Lately, there has been a lot of discussion about whether or not this protection should apply to both platforms and publishers. There is a lot of confusion about the purpose of Section 230 and which types of websites are provided immunity under Section 230.
According to many Republicans, Twitter should not qualify as a platform if they “act like a publisher.” After hearing this over and over from my Republican friends, I decided to track down the origin of this Section 230 Myth and clear up the confusion. Section 230 actually protects both platforms and publishers from liability if they host other people’s content. Let me explain.
History of Section 230: Distributor Vs Publisher
Section 230 of the Communications Decency Act was enacted in 1996 to address the complex issues of websites that host user-generated content. It was introduced into law to protect website owners from being sued over comments or posts made by users of their websites.
Imagine hosting a forum with millions of members posting billions of comments every day. How could website owners possibly read and review every single comment that their users posted? They couldn’t! As the internet grew in size, the question of how to handle legal cases that involved user-generated content, came into question.
Two court cases, in particular, paved the way for the creation of Section 230. One case involved Compuserve and the other involved Prodigy. Compuserve took a hands-off approach to content moderation, while Prodigy had community standards that its users agreed to follow. When taken to court over defamatory comments posted by users of their websites, the courts found Compuserve free from liability, while Prodigy was found libel.
The cases were decided based on the current laws at the time. Compuserve was viewed as a distributor of content due to its hands-off moderation. Because they didn’t screen the content their users posted before it was published, they had no way to know about it. Since they didn’t know about it, they couldn’t be found liable for it.
Prodigy, on the other hand, moderated the content posted on their forums. Because they moderated their forums, the courts said that Prodigy “exercised significant editorial control”. This content moderation meant Prodigy was not just a distributor, but a publisher of content. Thus Prodigy could be liable for defamatory content posted on their forums.
These court cases created a dilemma that lawmakers wanted to address. The decisions of the court were based on the current laws which protected distributors (for example, a book store that distributed books) but did not protect publishers (like newspapers or television stations).
If a website was held accountable for maintaining community guidelines but was free from liability if it did not, no website owner would want to moderate its content for fear of liability. Section 230 was written to rectify this. In 1996, Section 230 was introduced to provide “interactive computer services” immunity from liability for comments posted by users of their services.
Origin of the Platform Vs Publisher Myth
Section 230 was originally passed with the intention of encouraging free speech and responsible behavior among website owners. By giving them immunity from lawsuits arising from user comments, it allowed platforms to create and enforce community standards without fear of legal consequences.
However, as the political divide has escalated over the last decade, some feel that Section 230 is providing social media platforms like Twitter sweeping immunity, allowing them to censor free speech. The debate became even more heated after Twitter decided to permanently suspend Donald Trump and other conservatives. This led some Republicans to believe that Twitter was abusing its Section 230 protections.
And, this is where the platform vs publisher myth about Section 230 started. Senator Ted Cruz tweeted, “If #BigTech is going to continue to act as a publisher to promote its political agenda, then it should no longer be able to enjoy special benefits provided under #Section230.
If #BigTech is going to continue to act as a publisher to promote its political agenda, then it should no longer be able to enjoy special benefits provided under #Section230. pic.twitter.com/oj8Cht5IpU
— Senator Ted Cruz (@SenTedCruz) November 21, 2020
Keep in mind that this is Cruz’s opinion. It’s not the law. Section 230 does not distinguish between platform and publisher. The term “interactive computer service” is used to describe any legal protection provided in Section 230. This means any website that hosts user-generated or third-party content.
Myth: Only Platforms Can Claim Section 230
You may have heard this common misconception about social media platforms like Twitter. In the online community, many cry, but “they’re a platform!” To them, this means Twitter can’t filter, moderate, or “censor” anyone’s political posts because “they’re a platform!” If they edit or censor user posts, then they are no longer a platform but a publisher. And, publishers are not protected under Section 230.
This is the general idea floating around. Interestingly, this “misinformation” is rampant on the platforms that are purportedly censoring free speech. According to the law, there is no such thing as the “platform vs publisher” debate. Any interactive computer service that hosts content from users is protected from liability under Section 230
Fact: Both Platforms and Publishers of User-Generated Content Are Protected Under Section 230
Whoever told you that thing you keep repeating about how social media companies are “getting away with acting like publishers while being protected as platforms under Section 230”—that person misled you. I’m sorry. “Platform vs. publisher” is just not a thing. Read the law.
— Justin Amash (@justinamash) October 15, 2020
Section 230 not only protects platforms and publishers, it was written for the exact purpose that people are complaining about — to allow platforms to edit their user-generated content. A publisher that strictly hosts their own content can be sued and is not protected by Section 230. This is because the content they publish is theirs and theirs alone.
A platform is different though. They host content from millions (or billions in the case of Facebook) of users. It would be nearly impossible for these platforms to survive without Section 230. Even with the use of AI, these platforms couldn’t read and review every single comment ever posted. This is what the authors of Section 230 had in mind when they wrote the law.
The Platform vs Publisher Debate: Should Section 230 Protect Platforms that moderate their content?
While the law provides broad protections to internet companies like Twitter, Facebook, YouTube, and Google, the question of whether or not it should provide these protections is up for debate. There are currently dozens of bills in Congress that propose reforms to Section 230. However, how it should be reformed is very different depending on who you ask.
Republicans are arguing for less censorship and more freedom on social media platforms, while Democrats are asking for more censorship and less freedom on social media. But, both Republicans and Democrats think Section 230 needs to be fixed.
Republicans think Section 230 Should be Reformed
There are a number of bills in Congress right now that have been introduced by Republicans who want to repeal or reform Section 230. Republicans like Senator Josh Hawley, refers to Section 230 as Google’s “get-out-of-jail-free card”. He filed an amicus brief with the Supreme Court pressing the court to correct mistakes in interpreting Section 230. He has urged the court to reverse the decision of the Court of Appeals in the case of Google vs Gonzales.
He also introduced the Federal Big Tech Tort Act which would not amend Section 230 but it would make social media companies liable if “an individual under the age of 16 years suffers bodily injury or harm to mental health that is attributable, in whole or in part, to the use of a social media company’s website, online application, or mobile application.”
Other Republicans like Senator Lindsey Graham would like to sunset Section 230 saying, “The time has come for these largely unregulated Big Tech giants to either be broken up, regulated, or subject to litigation for their actions.”
Democrats Think Section 230 Should be Reformed
Democrats also think Section 230 should be reformed. Senator Mark Warner (D-Virginia) introduced the SAFE TECH Act, which would add exceptions to the good Samaritan immunity granted in Section 230. The bill would allow exceptions for suits that involve paid content, injunctive relief, civil rights laws, cyberstalking, wrongful death, and Alien tort claims.
If website owners can be sued for “paid content” that they host, this could open up all kinds of problems for website hosting companies like GoDaddy or WordPress. Jeff Kosseff author of, The Twenty-Six Words That Created the Internet told Tech Crunch, “Platforms accept payments from a wide range of parties during the course of making speech ‘available’ to the public.”
He explained, “The bill does not limit the exception to cases in which platforms accept payments from the speaker.” This bill would effectively remove immunity for hosting providers like WordPress, YouTube, and even hosting companies like GoDaddy that merely hosts websites.
It would also add another exception for content that is perceived as discrimination, by adding “Nothing in this section shall be construed to limit, impair, or prevent any action alleging discrimination on the basis of any protected class, or conduct that has the effect or consequence of discriminating on the basis of any protected class, under any Federal or State law.”
What Do Libertarians Think?
Libertarians are adamantly in support of the First Amendment, providing all of us with the right to freedom of speech. We are the only political party that values Section 230’s role in protecting free speech on the internet. While both Republicans and Democrats argue that Section 230 provides social media platforms with a “blank check” or “get-out-of-jail-free card”, Libertarians value the necessity of the provisions granted under Section 230.
Republicans want to be able to say whatever they want while holding the platform liable for the things they say. And, Democrats want to regulate what can and can’t be said on the internet. Libertarians want to protect your right to free speech, both on the internet and off.
Libertarians like Justin Amash explain that the problems Republicans and Democrats have with Section 230, is not Section 230 itself but the First Amendment. Both Democrats and Republicans want to change the provisions in Section 230 that protect online speech.
If a person sues Twitter or Facebook for censorship or unfair treatment, that person almost certainly will lose because of the First Amendment, regardless of Section 230. Stop pretending your problem is with Section 230 when your problem is actually with the First Amendment.
— Justin Amash (@justinamash) October 14, 2020
Many of the issues Republicans and Democrats have with Section 230 can be addressed without the government imposing new laws and regulations. We are relying on the government to monitor what content our children view online, what speech is considered misinformation, and what publishers are allowed to remove from their own websites.
We are already seeing the creation of new competitors to big tech companies like Google, YouTube, and Twitter. The rise of these new competitors is a testament to the power of consumer choice. Consumers are breaking up with big tech all on their own. They are doing this without the government meddling in the marketplace by choosing for themselves platforms that reflect their values and interests.
It is imperative that we keep Section 230 intact. Chipping away at it or repealing it will destroy the freedom most Americans value most, the freedom of speech. We must encourage our legislators to stand up for us and oppose any changes that weaken or undermine this crucial law. Our representatives must understand how vital Section 230 is to maintain a vibrant and diverse internet where all voices can be heard, including unpopular voices.
Do you think Section 230 Should Be Reformed?
What do you think about Section 230? Have you heard the platform vs publisher debate? Do you think it provides too much immunity for platforms like Facebook, Google, and Twitter? Do you think it should be reformed or revised? Let me know your thoughts in the comments!
