Online behaviors under Section 230 of the Communication Decency Act

Section 230 of the Communications and Decency Act has been viewed as an integral part
of protecting the freedom of expression in the digital age. The Section shields internet operators
from any liability on information that is submitted by internet users. The act was initially
intended to create a restriction to free speech. The Communication and Decency Act was largely
opposed by internet users. The result was that the anti-free speech provisions were declared null
and void by the Supreme Court. However, Section 230 has remained in place and reads, “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” (Cornell Law School, 2022).
Individuals that act as online intermediaries and host or republish speech are absolved of any
liability and are not bound by laws that may seek to hold them accountable. The Section protects
internet service providers and extends to other intermediaries, including interactive computer
service providers. Companies that publish third-party content are also protected by the law.
Section 230 has sparked a huge debate on its intentions as well as the methods of
enforcing it. Proponents have argued that it has helped in enforcing free speech in the digital age,
especially because it protects YouTube and Vimeo users from uploading content that can be
accessed by the general public (Dickinson, 2010). Further, the Section has allowed social media
companies such as Facebook and Twitter to offer social networking to millions of users across
the world. With the increase in the number of user-generated content, it would be difficult to
online task intermediaries with the job of censoring content that is deemed to be inappropriate.
The intermediaries would likely opt not to host any user content for fear of facing potential
liability from the content posted by users.

3
Opponents feel that this law has caused most problems that relate to the internet. These
problems include harassment, the spread of fake news, hate speech, child abuse, sexual
harassment, nonconsensual pornography, and the spread of violent content. Opponents feel that
the law provides blanket protection to online services and gives them too much freedom
(Dickinson, 2010). In addition, Section 230 fails to take into account the harm that may be
caused by internet users. Actors have hidden behind its protections and caused harm to third-
party users.
While Section 230 has empowered the growth of the internet, it may not necessarily be a
good thing. Fundamental changes are needed to ensure that the protections do not create a
harmful and toxic internet climate. When interpreted broadly, Section 230 creates various
complexities. Courts have in the past struggled to interpret Section 230, and the law has lost its
intended purpose (Dickinson, 2010). Congress had intended to ensure that children are protected
from internet pornography. This would be achieved by ensuring that internet service providers
censor content voluntarily. Congress also aimed at ensuring that there is freedom of speech on
the internet. The two goals are achieved by Section 230, exempting internet service providers
from tort liability arising from the creation of tortious content by third-party users.
Section 230 has been interpreted broadly by almost all courts. Immunity has been given
broadly to players in the internet industry, and this creates a problem. The Section has covered
publishers who are part of producing controversial content for as long as they are not the original
creators of the controversial content. The broad interpretation helps in achieving freedom of
speech but creates another problem. It immunizes direct participants of the production of tortious
content. There is a need to make amendments that capture common law principles on vicarious

4
liability. There is a need to ensure that action is interpreted narrowly. Immunity should not
extend to people who engage in the production of tortious content.
In Fair Housing Council of San Fernando Valley v.Roommates.com, LLC, the Ninth
Circuit was given the task of weighing in on a discrimination claim. The claim has been raised
against the website Roommates.com. On its part, the website alleged that it was protected by
Section 230 of the Communication and Decency Act (Cramer, 2020). However, the majority
rejected the argument and stated that the website plays the role of both a service provider and a
content provider. The requirement that subscribers provide information relating to their sexuality
made the website to be more than just a content transmitter. The website was held liable since it
played an active role in content development.
Cases such as Fair Housing Council of San Fernando Valley v.Roommates.com highlight
the need to have a narrower interpretation of the law. The case also highlights the problems that
courts have faced in applying the law. Courts have been unable to provide a theoretical
foundation on why they have diverted from a majority of the courts that have taken on a broad
interpretation. Section 230 was inspired by the case Stratton Oakmont, Inc. v. Prodigy Services
Con (Cramer, 2020). While Congress aimed at providing a level of immunity to internet service
providers, the intention was not to have a blanket and broad immunity. To this end, the Section
provides liability protection that is too broad contrary to the original intentions.
There is a need to narrow down the liability protections. A “good faith” requirement is
needed to achieve this goal. Parties need to ensure that they distribute content in good faith. If
players in the Internet industry facilitate a crime, they should be held liable by the law. The
Section should compel internet service providers to crack down on third-party users that spread
misinformation or engage in various crimes. As it currently stands, there is no legal requirement

5
that motivates internet service providers and social media companies to take action on users who
engage in illegal practices (Cramer, 2020). The tech industry is treated differently compared to
other industries. It is difficult to prove vicarious liability in court when dealing with players in
the tech industry. Social media companies need to be compelled to create an environment where
users are not empowered to engage in various tortious activities. This can only be done by
narrowing down the immunity protection.

6

References

Cornell Law School. (2022). 47 U.S. code § 230 – Protection for private blocking and screening
of offensive material. LII / Legal Information
Institute. https://www.law.cornell.edu/uscode/text/47/230
Cramer, B. W. (2020). From Liability to Accountability: The Ethics of Citing Section 230 to
Avoid the Obligations of Running a Social Media Platform. Journal of Information
Policy, 10(1), 123-150.
Dickinson, G. M. (2010). An interpretive framework for narrower immunity under Section 230
of the Communications Decency Act. Harv. JL & Pub. Pol’y, 33, 863.