It is unusual for a clause in an act of Congress to develop a cult following, but Section 230 of the 1996 Communications Decency Act has. The clause explicitly says that the internet should not be treated like print or broadcast media, which means internet platforms do not bear any liability for third-party content.
This strongly contrasts with the treatment of both print and broadcast media. If someone takes out an ad in a newspaper or writes a letter to the editor, wrongly accusing someone of being a thief or a murderer, the paper can be sued, along with whoever took out the ad or authored the letter.
The same applies to a television or radio station. They could also be held liable for carrying an ad or promoting defamatory claims, as is now happening in the lawsuits that Dominion and Smartmatic are pursuing against Fox News.
But Section 230 means that Facebook or Twitter can circulate, without any concern, the same material that would lead to a large defamation suit against a newspaper or television station. It is hard to see how that can make any sense, especially since these and other internet platforms have a much larger reach than any newspaper or television station.
There is an obvious defense of the differing treatment, which is also clearly wrong with a moment’s reflection. The defense is that we can’t expect a platform like Facebook or Twitter to monitor the billions of items posted daily.
That is true, but also beside the point. We don’t have to write the law so that they are responsible for items as they are posted. We can write the law so that they are responsible for defamatory material that they opt not to remove after it has been called to their attention by the party claiming defamation.
If this still sounds like an impossibly difficult lift, familiarize yourself with the Digital Millennial Copyright Act of 1998 (DMCA). This act requires internet platforms to remove infringing material promptly after it has been called to their attention by the person alleging infringement.
Facebook, Twitter and the rest can deal with this one and promptly remove material that is alleged to be infringing. In fact, they take the DMCA very seriously, likely over-removing, since copyright law provides for statutory damages that can be many times the size of any actual damages to the person whose copyright was infringed.
We can structure a law for internet liability for defamation by third parties along the same lines. The person claiming defamation would have to contact the platform and clearly specify what material is defamatory and why. The platform then has to decide whether the complaint is serious enough to warrant removal.
The logic of applying defamation to platforms should be obvious. The platforms can gain benefits from carrying the material. This is most apparent when the material is a paid ad, but even when it is free content, it may attract an audience to the site.
The internet platform clearly can make a decision as to whether the material is defamatory and should be carried out. As we see from recent debates over carrying election-related material, Facebook, Twitter and other platforms always make this sort of decision.
There is also the issue that someone defamed should be able to pursue a case against all the parties responsible for their harm. If “John Smith,” with a post office box in Ames, Iowa, does a major Facebook ad campaign wrongly calling someone a murderer, that person is likely to have a difficult time collecting damages against the alleged John Smith.
On the other hand, Facebook, responsible for wholesaling the lie, can be easily found and has the deep pockets to pay actual damages. Repealing Section 230 allows for the suit to be directed against Facebook.
Many issues would have to be debated in a repeal. For example, would we want to retain Section 230 protection for smaller sites or those that did not take ads or sell personal information? We could slice and dice a repeal thousands of different ways.
But the critical step is to have the debate, and for that, we need to overcome the cult of Section 230. God did not command that the internet be treated differently from all other media. We need to have a serious discussion of the extent to which it is appropriate and desirable.
