You may never have heard of Section 230 of the Communications Decency Act. However, the 1996 federal law has shaped how you have used the Internet for nearly two decades. Section 230 provides Internet service providers, websites and other online services with broad legal immunity for content that is provided by users. So, for example, if a Facebook user posts a false and damaging comment about his neighbor, the neighbor cannot succeed in a defamation lawsuit against Facebook — thanks to Section 230.
Without this legal protection, it is unlikely that social media companies and other sites and apps would allow the user-generated content that has come to define the modern Internet. Visiting websites would be like reading a magazine or watching television, rather than the interactive experience that we all have come to expect.
Section 230 has long been under attack by various opponents who want to hold websites and ISPs responsible for their users’ content. In recent months, these opponents have claimed some significant victories in court. If they continue to erode Section 230, the Internet, as we know it, will become a more closed and controlled environment.
Last month, a federal judge in Utah allowed a lawsuit filed by a home alarm company to proceed against the operator of Ripoff Report, a website that allows users to post consumer reviews. The lawsuit stemmed from negative comments that a competitor allegedly posted about the alarm company. The court concluded that despite Section 230’s broad protections, Ripoff Report could be responsible for the content if it had “encouraged” the offensive user content — a conclusion that many other courts have long rejected.
And this month, the Washington Supreme Court allowed a lawsuit to proceed against backpage.com. The plaintiffs are three minors who allege that they were sold for sexual services via advertisements placed on backpage.com, resulting in their rape. The court reasoned that the suit could move forward because backpage.com developed advertising content requirements, and therefore may have helped create the ads.
Recent court opinions present a great deal of uncertainty for websites and social media companies.
Why should we care whether websites and online services are held accountable for their users’ content, particularly when that content can lead to physical and emotion injury? As anyone who has read user comments would attest, many tweets, posts and other unedited comments are truly vile, and often demonstrate the worst of humanity. I do not — and cannot — defend a great deal of online user content, particularly the horrific advertisements on backpage.com.
But Section 230 correctly places the liability on the user who created the online material, not the website that acted as a conduit. If an individual posts a defamatory comment on the Internet or exploits a minor, that user should be held responsible in court.
Since 1996, courts generally enforced that principle and provided websites and other online services with the clarity and certainty that they need to allow users to post comments, photos and other materials online. These recent court opinions, however, present a great deal of uncertainty for websites and social media companies.
If courts continue to hold online services responsible for user-generated content, the result ultimately will be a one-way, closed Internet, in which websites, apps and other platforms do not allow consumers to create and post content. As the Electronic Frontier Foundation correctly observed, the backpage.com decision suggests that websites are “safest if they provide no interactive services at all.”
Imagine an Internet without social media, consumer reviews and user forums. Such a change would devastate the online world. The interactive nature of the Internet is precisely what has allowed it to thrive and evolve over the past 20 years. Unfortunately, courts’ misinterpretation of a federal law could slow — or even reverse — this progress.
As long as people are unhappy with user content, Section 230 will continue to face attacks in court. It is in the best interests of the tech community to stand firm and defend the law that has played a fundamental role in the development of the modern Internet.