It has long been said, “a lie can travel halfway around the world while the truth is putting on its shoes,” but never has this been more true than in the internet age. The ubiquity of misinformation and defamation online has done great harm to public health and safety, democratic processes, and civil society. Malign foreign actors exploit the lack of regulation of the U.S. internet to harm U.S. interests. Furthermore, misinformation on the internet has fostered distrust of basic norms and institutions, threatening effective governance and policymaking in general.
The law that makes this possible is Section 230 of 47 U.S. Code, which affords near all-encompassing immunity to interactive computer services when publishing third party content. As used in the language of the bill, an interactive computer service: “provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet.” This includes social media companies like Facebook and search engines like Google.
In practice, Section 230 means there are essentially no consequences for internet services when their platforms are abused. Ironically, the law was created precisely to incentivize companies to moderate without fear of being liable for things they missed. After all, it would be impossible to moderate all illegal content. This legal carte blanche has backfired, however, by removing incentives to moderate at all.
To address this, Congress should establish certain modest conditions that interactive computer services must meet to qualify for immunity. As suggested by Virginia Law professor Danielle Citron, the principal condition for immunity should be proof that one’s interactive computer service is taking “reasonable steps” to target specific kinds of online offenses – like revenge porn, doxing, and other defamation – that cause severe and direct harm. In other words, the immunity would be conditioned upon being able to prove to a judge that one’s computer service has procedures for flagging and removing online defamation.
Of course, it is plausible that such “reasonable procedures” will become an easy bar for internet services to clear. It is also true that misinformation and defamation are not the same target. But the reduction of legal immunity from a near all-encompassing to a qualified immunity would encourage these providers to put more time, money, and effort into their content moderation practices. In other words, this increased vigilance will result in a net reduction of misinformation online because companies will have to moderate defamation more than they do under the status quo. Currently, many interactive computer services are indeed disincentivized to moderate responsibly because their business models aim to maximize user engagement above all else. Balance is needed between the unreasonable level of immunity of the status quo and unreasonable penalties that would significantly disrupt the internet we know.
Critics of the “reasonable procedures” approach may assert that if the broad immunity shield for interactive computer services is even slightly adjusted, there will be wide-ranging consequences for the free internet because there is far too much content on many of these platforms to be moderated. The companies will not be able to effectively prevent all illegal usage of their services, and this will open them up to unreasonable legal risk, thereby stifling innovation. These critics would contend that internet services would be drowned by legal fees for frivolous SLAPP lawsuits (Strategic Lawsuits Against Public Participation) — these are the lawsuits meant not to go to trial, but to force the defendant to pay exorbitant legal fees.
Therefore, the success of modest Section 230 reform would require a parallel piece of legislation — a federal statute prohibiting SLAPP lawsuits. Currently 28 states have enacted anti-SLAPP statutes of varying severity, but a federal statute would be necessary given the borderless nature of the internet.
Another risk of weakening the immunity of service providers is that a more heavily regulated internet space can always be argued to stifle the freedom of speech online. For this reason, harsher reform proposals – such as proposals to legally treat Google, Facebook and Twitter as advertising companies due to their business models – would be too large a disruption to modern modes of speech.
Modest qualifications to the kinds of immunity granted by Sec. 230, in tandem with a federal anti-SLAPP statute, would both keep the internet a vibrant place of innovation and connection while still incentivizing interactive computer services to keep their house in order.