San Francisco Intellectual Property Blog
Politicians on both sides of the aisle in the US face mounting pressure to curtail the limitations on liability for online activity provided by Section 230 of the 1997 Communications Decency Act (DCA). 47 US Code Section 230 is the primary law that allows online companies like Facebook, Twitter, Amazon, Google, YouTube, Instagram, VRBO, and thousands of other businesses to provide online services to consumers without fear of liability for the postings of their customers or other third-parties.
In other words, CDA 230 is critical to technological innovation and the development of tools that enable a robust public dialogue. As described in Reason:
“…practically the entire suite of products we think of as the internet—search engines, social media, online publications with comments sections, Wikis, private message boards, matchmaking apps, job search sites, consumer review tools, digital marketplaces, Airbnb, cloud storage companies, podcast distributors, app stores, GIF clearinghouses, crowdsourced funding platforms, chat tools, email newsletters, online classifieds, video sharing venues, and the vast majority of what makes up our day-to-day digital experience—have benefited from the protections offered by Section 230.
Without it, they would face extraordinary legal liability. A world without Section 230 could sink all but the biggest companies, or force them to severely curtail the speech of their users in order to avoid legal trouble.”
CDA 230 was designed to empower individuals with user-defined control over what information is received online, but calls to replace that freedom with government-approved speech are on the rise in the US. In addition to the chilling effect on freedom of expression, such regulation would dramatically stifle innovation and technological development. Since legal liability would attach for the actions or statements of third-parties, companies and entrepreneurs would be discouraged from design choices that enable the free flow of information and promote social interactivity.
Such calls to restrict CDA 230 should be resisted because these protections have proved critical to fostering technological innovation, democratic processes, and economic development. Protection for intermediaries means companies and entrepreneurs are free to build online tools that enable the expression and social interaction of others without the burden of liability for what is said by others. Without these legal protections, companies and entrepreneurs would be stopped dead in their tracks by the threat of legal liability for others’ actions.
The 2nd Circuit Court of Appeals issued a significant ruling regarding CDA 230 recently, clarifying that companies such as FaceBook are not liable for the postings of terrorists on their platforms. Case Force v. Facebook made clear that CDA 230 immunity should be read broadly to protect online companies from having to police and control their platforms for offending material. “The Circuits are in general agreement that the text of Section 230(c)(1) should be construed broadly in favor of immunity,” opined the Court.
Both Congress and the US President have threatened to amend CDA 230 in order to regulate online speech in accordance with their own preferences for censorship, jeopardizing the immunity that has protected entrepreneurs and innovators for more than two decades. But such restrictions would surely “kill the golden goose” that has harnessed such incredible economic growth and technological development in recent years.
Notably, CDA 230 does not apply to criminal activity; nor does it immunize intellectual property violations, which are regulated under the US Digital Millennium Copyright Act (DMCA) and laws related to contributory and vicarious infringement. CDA 230 does however strike a balance between technological development and accountability under the law, ensuring the freedom of innovators while not immunizing the most egregious online behavior. CDA 230 should be protected, not curtailed, in order to promote the future health and growth of the Internet.
