Section 230 Series: The Law’s History, Its Impact, Its Problems (Real and Imagined), and the Path Forward for Reform

Overview

Who is responsible for illegal speech? That is the question at the heart of the increasingly contentious, high-stakes debate over Section 230 of the Section 230 of the Communications Decency Act of 1996.

Historically, laws on intermediary liability have treated those who publish content differently from those who distribute it: Booksellers and newsstands are not legally responsible when a publication they distribute contains illegal content, but the publishers of that illegal content are. The rise of online services blurred those lines, so Congress passed Section 230 to provide clarity while promoting innovation on the Internet. The goal was to allow online services to moderate content on their platforms in good faith, removing harmful or illegal content while still providing a forum for free speech and a diversity of opinions. The law has since become the central piece of legislation governing online intermediary liability in the United States.

But as the landscape of the Internet has changed—particularly with the rise of social media—Section 230 has come under scrutiny. On one side, the law’s advocates argue that the modern Internet relies on Section 230’s liability protections. The law allows online services that rely on user-generated content to avoid being bogged down with expensive, meritless lawsuits. Instead, online services can choose to moderate their platforms to serve the best interest of their community, creating a forum for free speech and open discourse.

On the other side, opponents argue Section 230 is too broad, shielding bad actors as well as good ones. Victims of defamation, harassment, and other online abuses cannot hold online services accountable. Opponents claim the liability shield removes incentives to remove harmful or illegal content and prevent harmful or illegal activity from happening. Others worry Section 230’s liability protections give platforms too much freedom to selectively silence certain speech.

Yet most people are unaware of the extent to which Section 230 has shaped the modern Internet. Even some policymakers get the details wrong. As the debate rages, this series of reports clarifies the essential issues at hand in an effort to point the way forward.

The reports proceed as follows:

  1. Overview of Section 230: What It Is, Why It Was Created, and What It Has Achieved
  2. The Exceptions to Section 230: How Have the Courts Interpreted Section 230?
  3. Fact Checking the Critiques Section 230: What Are the Real Problems?
  4. How Other Countries Have Dealt With Intermediary Liability
  5. Proposals to Reform Section 230

After providing an overview of Section 230’s history and reviewing exceptions to the law, common critiques, and other countries’ approaches to the issue of intermediary liability, ITIF then reviews the major proposals that have been advanced by advocates on all sides of the issue to assess which would be most likely to succeed.

Recommendations

ITIF concludes that any reform to Section 230 should preserve the fundamental principle that liability for content should reside with the content creator while also ensuring online platforms are held responsible for their own conduct. In addition, it is important than any reforms preserve online innovation, encourage content moderation, avoid targeting lawful speech, and maintain a consistent national standard for online intermediary liability.

To that end, ITIF recommends that Congress should take the following steps:

  • Establish a good faith requirement to prevent bad actors from taking advantage of Section 230(c)(1)’s liability shield.
  • Establish a voluntary safe harbor provision to limit financial liability for online services that adhere to standard industry measures for limiting illegal activity.
  • Expand federal criminal laws around harmful forms of online activity that are also illegal at the state level.

Notably, as explained in the fifth report, the establishment of a good faith requirement or a safe harbor provision would be problematic on their own. However, if pursued jointly as part of a Section 230 reform, they would address the weaknesses of implementing either proposal independently.

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Section 230 Series: The Law’s History, Its Impact, Its Problems (Real and Imagined), and the Path Forward for Reform