Why Section 230 really matters to business

1280px Illustration of 1904 patent for catcher protector

Protection doesn’t have to be attractive to be effective.

There’s a lot of discussion in the US political arena about Section 230 of the Communications Decency Act (CDA). Much of it is, frankly, wrong, but I’m not here today to tell you about why I think that to be the case. I do want to tell you that, if you have an online business and you accept any content whatsoever from third parties, Section 230 offers critical protection to your business and you need to consider whether you want that critical protection to disappear.

When the internet was young, there was a period where the liability of online service providers for third party content was unclear. One of those, CompuServe, decided on a completely hands-off approach, taking absolutely no steps to control what was posted by whom, in large part to avoid liability for being in any way involved. Another, Prodigy, differentiated itself by moderating content to ensure that “bad” content didn’t reach its users. Both were sued, and CompuServe’s hands-off approach was vindicated, whereas Prodigy’s approach was not. From that point on the common wisdom was that, to avoid liability, platforms should remain completely neutral and not meddle in any way with third-party content. Any moderation of third party content at all increased the risk of liability.

As you can imagine, a completely unmoderated internet rapidly began to move from interesting source of information to unmanageable dumpster fire. In an effort to reign things in, particularly with respect to pornography and defamation, Congress passed the Communications Decency Act (CDA). And now the internet is free of both …

That’s not what happened. What actually happened is the CDA was found mostly unconstitutional, but Section 230 of CDA survived. Section 230 states that “interactive computer services” would not be treated as the “publisher or speaker” of a third party’s content. In other words, the law made it safe for companies to allow customers or others to publish content on their websites or using their systems, and ensured that the company wouldn’t be held responsible for anything which was said (for the most part). That clearly benefits the YouTubes and Facebooks of the world, but it also benefits anyone who allows third party content onto a website.

For example, I’m responsible for anything I write on this blog, for better or worse. This blog allows comments, however, which means that third parties can effectively post their content to my website. Under Section 230, if my son decides to comment on my blog to say something nasty about the famous soccer player Cristiano Ronaldo, Mr. Ronaldo can sue my son for defamation but he can’t sue me (at least not successfully). Equally important, when I make the decision to delete my son’s comment I can do so without losing the liability protection Section 230 provides. In a pre (or post) Section 230 world, that’s not necessarily going to be the case, and I’d have to seriously consider turning off the ability to comment. The same applies to almost any website with interactive features, from comments to customer ratings, discussion boards to help boards, and pretty much any other online content which is sourced from more than one person.

There are limits on the liability protect Section 230 offers, especially with respect to intellectual property, but it’s really the law which has allowed the internet of today, with all of its warts, to come into being. Without Section 230, much of that would become fraught with risk. That risk would force many providers to shut down those interactive features altogether, and companies would lose a very critical source of information and communication about their customers and products. Realistically, it would also increase the near-monopoly power of those large service providers who can afford to wrestle with the liability issues which would arise, like Facebook and Google.

Section 230 isn’t perfect, no law ever is, but unless you want to lose the ability to interact with your customers online it’s extremely important.

EFF has a brief article on CDA Section 230 which explains in some more detail the protections offered by Section 230. Verge has provided a summnary of the history of Section 230 and the potential harms of some of the proposed changes. As always, for details on Section 230 and an excellent treatment of some of the specific issues outlined above see Professor Eric Goldman’s Technology and Marketing Law Blog

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