New York Personal Injury Law Blog » Section 230


December 2nd, 2020

Section 230 and Me

The late Speaker Tip O’Neill once famously observed that “all politics is local.” I’m not going to argue with that, especially when so many people scream “It’s all about me.”

But I’m not too keen when the press does it. And so the headline in this Washington Post article about Section 230 immunity rankles me:

Section 230 refers to a small portion of the Communications Decency Act that gives immunity to information providers for the things that other people might comment on. The nuts and bolts of it are these 26 words:

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.

These 26 words are very broadly interpreted. It means, for example, that if I blog a piece about Joe Shlabotnick inventing a new baseball, and the reader comments devolve into a virtual screaming match about Nazis and accusing each other of crimes, that I am not responsible for what you write. I can’t be sued for defamation over them. Or at least not successfully sued.

I can even take a comment, add headings and illustrations, and elevate it to a guest post and still be immune from being sued for defamation as the publisher. So sayeth New York’s highest court back in 2011 in Shiamili v. The Real Estate Group of New York when a blog did just that.

Without that protection, what is a blogger supposed to do if there are complaints that comments are defamatory? Do an investigation? Conduct discovery? Take depositions? And I supposed to take down a comment merely because someone else says it’s defamatory? How should I know who is telling the truth? Or if the truth is a hybrid of both positions?

This is the stuff that trials are made of after a couple years litigious digging about. Without the protection, the comments are neutered.

All politics is local. The law affects me. And it affects you, should you wish to make comments or simply read them.

Now take my concerns about comments on this humble little blog and magnify them by a bazillion. Because that is what Facebook, Google, Twitter, etc. all have to worry about. Demanding perfect moderation of comments is to demand the impossible.

Section 230 is a huge part of the engine that makes the web truly interactive, where you can not only read and write product reviews on Amazon, but also visit a small restaurant or hotel in Ottumwa, Iowa while visiting your old friend Radar. And then leave comments for future visitors on Yelp or Trip Advisor, and those web sites don’t have to fact-check your comment about the rude conduct of the waiter or desk clerk for accuracy. Because such moderation would be impossible.

Now Trump is threatening to veto a defense bill because he doesn’t like section 230. I won’t pretend that he actually understands the significance of it, but you should. And “tech giants” is only a part.

Perhaps he merely knows that when he incessantly spins fictitious conspiracy tales of election fraud that Twitter labels them as disputed. Trump, as everyone knows, is a Twitter addict. He thrives on being able to spew on it. And he clearly isn’t happy that Twitter itself is fact-checking him, so perhaps he just wants to get back at Twitter.

Twitter, of course, is only responsible for what it writes, not what others write. Thanks to 230.

(Full disclosure: I own stock in Twitter, having bought it after Trump was sworn in, figuring that four years of free advertising couldn’t hurt.)

You may think that with Trump leaving office (even if the Secret Service needs to haul him out for trespassing) that this doesn’t matter. It does, because Joe Biden likewise thinks section 230 should be revoked.

The media may wish to focus on how this affects the tech giants — hey they got money, why don’t they just do a better job of content moderation? — but it affects me. And you.

It’s true that the comments on many sites are little more than a puddle of spittle that are unworthy of notice, except perhaps, noticing them for the purpose of avoidance. Some sites may allow people to do and say horrible things.

But it’s easy to identify problems. The hard part is finding solutions. There is no magic bullet for comment moderation. There is no artificial intelligence program that can figure out if the waiter or desk clerk in Ottumwa really was rude to you and if your comment about the incident was fair and accurate. Artificial intelligence can’t know if the product you ordered and reviewed online really was crappola.

If Section 230 is destroyed then many sites will simply stop allowing comments. Or, upon any complaint simply take down the comments of others, thereby giving a heckler’s veto to the complainant over the commenter without regard to accuracy.

The issue of Section 230 is not some esoteric lawyer thing. It’s fundamental to the way we now interact with others and how the internet functions.

I haven’t written about this before because I never took attempts to remove 230 immunity seriously. But when voice is given to it by both an outgoing and incoming POTUS, and the press pretends it’s only about “tech giants” then it is time to make sure you know what is at stake. What is at stake are both the comments you read and the comments you make.

If you are interested in more:

Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act (Masnick @ Tehdirt)

Everything you Need to Know about Section 230 (The Verge)

Can Section 230 Be Reformed? (Greenfield @ Simple Justice, 12/23/20)

I wrote this law to protect free speech. Now Trump wants to revoke it (Sen Ron Wyden @ CNN)

Section 230 is Good, Actually (Kelley at Electronic Frontier Foundation)

4 thoughts on “Section 230 and Me

  1. It’s not only “fundamental to the way we now interact with others and how the internet functions”, but it’s also consistent with the 1st amendment.

    — Your favorite brother

    • Glad to see my comments are working again.

      but it’s also consistent with the 1st amendment.

      There are a few things that are not protected by the 1A, such as defamation. Section 230 protects me from being treated as the publisher if someone were to write something defamatory here. Now magnify that by a bazillion for Yahoo, Google, Twitter, Yelp, etc.