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Section 230 Of The CDA: One Of The Most Valuable Tools For Protecting Freedom Of Expression & Innovation On The Internet

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Published on: August 18, 2018

As social media platforms continue to engage in overt and covert censorship of free speech, they claim that they are doing it to protect advertisers and people from consuming “hate speech,” “fake news” and other things that they think consumers shouldn’t be viewing, reading or hearing.  However, legal protections are in place that protect platforms from what others place on them.  So, their excuses are pretty much invalid.  Furthermore, they are violating the public trust by wanting certain protections under being a platform while at the same time attempting to act as a publisher.  That’s why it’s important to understand the kinds of protections that are in place for platforms in these matters, but also protections for publishers of content.

First, understand that free speech is protected speech, regardless of whether you are offended by it or deem it to be “hateful.”  Clearly, Congress can make no law regarding free speech.  Let me make clear, we are not talking about criminal speech such as lying about someone or something.  We are not talking about speech that incites rioting or insurrection.  We are talking about simple freedom to speak the truth.

Congress has passed laws to ensure that platforms that host others’ free speech are not responsible for what other people publish.

It’s called the Communications Decency Act (CDA) of 1996.  Inside that piece of legislation, is one of the most valuable tools for protecting freedom of expression and innovation on the Internet: Section 230, according to the Electronic Frontier Foundation (EFF).

EFF points out the irony of the contents of CDA.

“This comes somewhat as a surprise, since the original purpose of the legislation was to restrict free speech on the Internet. The Internet community as a whole objected strongly to the Communications Decency Act, and with EFF’s help, the anti-free speech provisions were struck down by the Supreme Court.”

Yet, it finds the provision in Section 230 “has far outshone the rest of the law.”

EFF continues by elaborating:

Section 230 says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content. Though there are important exceptions for certain criminal and intellectual property-based claims, CDA 230 creates a broad protection that has allowed innovation and free speech online to flourish.

This legal and policy framework has allowed for YouTube and Vimeo users to upload their own videos, Amazon and Yelp to offer countless user reviews, craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of Internet users. Given the sheer size of user-generated websites (for example, Facebook alone has more than 1 billion users, and YouTube users upload 100 hours of video every minute), it would be infeasible for online intermediaries to prevent objectionable content from cropping up on their site. Rather than face potential liability for their users’ actions, most would likely not host any user content at all or would need to protect themselves by being actively engaged in censoring what we say, what we see, and what we do online. In short, CDA 230 is perhaps the most influential law to protect the kind of innovation that has allowed the Internet to thrive since 1996.

Just how important are these protections?  Take a look.

The protections are not just for platforms though.  On some sites, bloggers and other outlets allow comments on their articles.  Those content providers are protected as well.  In other words, they are not responsible for what someone else posts.

CDA 230 also offers its legal shield to bloggers who act as intermediaries by hosting comments on their blogs. Under the law, bloggers are not liable for comments left by readers, the work of guest bloggers, tips sent via email, or information received through RSS feeds. This legal protection can still hold even if a blogger is aware of the objectionable content or makes editorial judgments.

The legal protections provided by CDA 230 are unique to U.S. law; European nations, Canada, Japan, and the vast majority of other countries do not have similar statutes on the books. While these countries have high levels of Internet access, most prominent online services are based in the United States. This is in part because CDA 230 makes the U.S. a safe haven for websites that want to provide a platform for controversial or political speech and a legal environment favorable to free expression.

Of course, each situation may require that you speak to an attorney in order to gain a better understanding of your rights and protections, but it seems that at its root, CDA is a protection for platforms that host free speech.  The problem we are facing in our country now is that publicly traded companies are trying to hide behind these protections while also acting as content providers.  This is a violation of the trust of the public and is criminal.

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