Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

7-2017

Publisher

University of Maryland Francis King Carey School of Law

Language

en-US

Abstract

What do a revenge pornographer, gossip-site curator, and platform pairing predators with young people in one-on-one chats have in common? Blanket immunity from liability, thanks to lower courts’ interpretation of section 230 of the Communications Decency Act (CDA) beyond what the text, context, and purpose support. The CDA was part of a campaign — rather ironically in retrospect — to restrict access to sexually explicit material online. Lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The CDA’s origins in the censorship of “offensive” material are inconsistent with outlandishly broad interpretations that have served to immunize from liability platforms dedicated to abuse and or those that deliberately tolerate illegality.

In contrast to a strike-oriented view of the CDA’s safe harbor, its modest revision will not break the “Internet.” Whether this would have been true at the time of its passage two decades ago, it would not be true today. Conditioning immunity from liability on reasonable efforts to address unlawful activity would not end innovation or free expression as we know it. The current environment of perfect impunity for platforms deliberately facilitating online abuse is not a win for free speech because harassers speak unhindered while the harassed withdraw from online interactions. With modest adjustments to section 230, either through judicial interpretation or legislation, we can have a robust culture of free speech online without shielding from liability platforms designed to host illegality or who deliberately host illegal content.

Comments

Published as: Danielle Citron & Benjamin Wittes, "The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity," in Symposium Terrorist Incitement on the Internet, 86 Fordham Law Review 401 (2017).

Find on SSRN

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.