This Article is written by Vanshika Jain, student of University Law College, Bangalore University.
Freedom of Speech is an important right guaranteed in almost all the democracies in the world. These three words ‘Freedom of Speech’ get thrown around and written about so often that what the expression means is more about misinformation than truth. Social media platforms such as Twitter and Facebook have proved to be vital intermediaries of providing a platform where people can voice their opinions to a targeted audience in a short span of time.
In many countries such as the USA and India, these platforms have been widely misused for spreading hate speech, inciting violence, spreading misinformation, and defaming others too. In such scenarios, there has been a growing concern for regulating these platforms so as to curb such activities. It is in the backdrop of this issue, which the two leading political rivals of the United States – the Democrats and The Republicans are on the same page through different lines.
BACKGROUND AND MEANING
Section 230 was enacted in 1996 during the Presidency of Bill Clinton in the Communication Decency Act (CDA) which predominantly aimed at curbing online obscene contents. The legislation was drafted by Democratic Senator from Oregon Ron Wyden and Republican Congressman from South Carolina Chris Cox to encourage technology and protect free speech in line with the first amendment to the US.
This provision provides immunity to online platforms and protects them from being liable for the content posted by the third party on these platforms. Hence, if any content which is offensive or against the public policy is posted by the users, the liability of the platforms stands dissolved; though they have given the right to restrict material in ‘good faith’ or the one which violates their guidelines. It is essentially based on a principle of public policy that it would be unjust to hold someone liable for someone else’s content.
In January 2021, the Twitter and Facebook accounts of the then US President Donald Trump were suspended by Big Tech Giants like Twitter and Facebook for his alleged role in inciting violence ensuing an attack on US Capitol by his supporters. This incident gave rise to the forgotten debate of amending or scrapping the controversial Section 230 of CDA.
Former President Donald Trump and the current President Joe Biden both are in favor of regulating the section due to different reasons. While the Biden administration wants to revoke the section as he believes that such platforms propagate falsehoods knowing them to be false; the Trump administration had issued an executive order in May 2020 attempting to curb some of the protections which was challenged in court.
Some conservative advocates for reform of the statute want to constrain platform editorial discretion to create a more favourable climate for their political perspectives. Some conservative advocates for reform of the statute want to constrain platform editorial discretion to create a more favourable climate for their political perspectives.
The Courts have devised a three-step test to determine if the Section 230 of CDA provides Internet Service Provider immunity. Firstly, the defendant service provider must be a provider or user of an interactive computer service. Secondly, the plaintiff’s cause of action must view the defendant as the ‘publisher’ or ‘speaker’ of a harmful statement. Thirdly, the harmful information was provided by another information content provider, other than the defendant. If all these three tests are met, then the online platform is protected by CDA and immune from legal liability.
Section 230 has been quite a flexible piece of legislation and withstood many changes since 1996. In April 2018, the legislation called Fight Online Sex Trafficking Act (FOSTA) was brought into force with the objective of shunning sex trafficking by curtailing the legal immunities. FOSTA provided that Section 230 of CDA would not apply to civil and criminal charges of sex trafficking, or to conduct that ‘promotes or facilitates prostitution’.
Again in February 2020, a new Bill was proposed which primarily focused on the prohibition of Child Sexual Abuse Material (CSAM). The Ninth Circuit Court of Appeals has held that Section 230 does not provide immunity to a site from a ‘promissory estoppel’ claim.
IS REVOKING THE LAW JUST?
It is because of this legal framework that internet platforms offer countless reviews, hosting classified ads, and of course, social networking! The amount of comments and posts which are spread through these media is humongous and hence it would be a herculean task for these online intermediaries to prevent offensive content from being posted. If this section is diluted or revoked then instead of taking responsibility or being liable for the actions of the third party, the platforms would rather find not hosting content at all a better solution. So it can be said that the legislation promotes free internet and it is because of this that innovation and free speech are still thriving.
Introducing procedures such as appeals for complaints and requirements to track posts will increase costs for platforms. Now instead of spending, these platforms are earning revenues through advertising. This burden of expenditure will ultimately be borne by the users as admission fees which would lead to a digital divide. Such regulatory costs would make it difficult for start-ups to survive in front of established giants like Google.
If internet service providers are held liable for content published by their users, this could either drive companies to bankruptcy from constant legal battles or boost them to regulate and censure content published by users.
The new proposed legislation by the Biden administration called Safe Tech Act, 2021 would no longer offer protection in situations where payments are involved. It would open internet companies to more civil liability in some cases, allowing victims of cyber stalking, targeted harassment, discrimination, and wrongful death the opportunity to file lawsuits against those companies rather than blocking those kinds of suits outright. The Safe Tech Act, 2021 would also create a carve-out allowing individuals to seek court orders in cases when an internet company’s handling of material it hosts could cause “irreparable harm” as well as allowing lawsuits in the U.S. Courts against American internet companies for human rights abuses abroad.
This controversial piece of legislation has proved to be both a sword and shield- A sword to intermediaries by vesting them with the powers of moderating and deleting contents if found inappropriate according to them and a shield to intermediaries by providing them with the already mentioned immunity.
Currently, the lawmakers wish to force online intermediaries to take responsibility for the editorial decisions they make regarding hosting content. Keeping in mind what Jeff Kosseff said about it – The Twenty-Six Words That Created the Internet who also authored a book with this title; it is important that before entirely taking away this immunity from online intermediaries, they be given a chance of fair hearing.
- Derek E. Bambauer, How Section 230 reform endangers internet free speech, BROOKINGS (July 01, 2020), https://www.brookings.edu/techstream/how-section-230-reform-endangers-internet-free-speech/.
- AnshuSiripurapu, Trum and Section 230: What to Know, COUNCIL OF FOREIGN RELATIONS (Dec. 02, 2020, 7:00 AM), https://www.cfr.org/in-brief/trump-and-section-230-what-know.
- AnandadayMisshra, Law to protect Internet Companies – Section 230 under Review Does India needs such a Law,TAXGURU (July 07, 2020), https://taxguru.in/corporate-law/law-protect-internet-companies-section-230-review-india-law.html.
- RahelPhilipose, What is Section 230, the law used to ban Trump from Twitter, THE INDIAN EXPRESS ( Jan 19, 2021, 11:03 AM), https://indianexpress.com/article/explained/donald-trump-twitter-section-230-7146371/.