What Everyone's Missing in the Section 230 Debate

Bloomberg Opinion
·5 min read

(Bloomberg Opinion) -- Conservatives, progressives, the U.S. president, victims of libel, parents, conspiracy theorists, lawyers, doctors, your neighbor — most everyone outside Silicon Valley seems to have a beef with Section 230 of the 1996 Communications Decency Act. The provision, which shields social-media companies from legal liability for the content they publish or block on their platforms, has come under more attack in the last week, as Republicans stepped up their criticism over Facebook’s and Twitter’s clampdown on a New York Post article about Joe Biden’s son, Hunter.

Here, three Bloomberg Opinion columnists discuss the consequences of repealing Section 230 and possible solutions.

Repeal Will Lead to More Censorship

Social media platforms like Facebook and Twitter may have siphoned off most of the advertising revenue that once belonged to newspapers, but they are hardly newspapers. “The public’s right to know” has never been central to their mission, nor have they cared much, until recently, about overseeing the information published on their platforms.

And why would they? Thanks to Section 230, they can’t be sued for defamation the way a newspaper can. Besides, inflammatory speech attracts viewers, which attracts revenue. That’s what they really care about.

Now, under pressure to eliminate much of the hate speech and disinformation on their platforms, the engineers who run Facebook and Twitter have mainly proved they’re terrible at it. Their rules are vague and erratically enforced. They make decisions and then reverse themselves when the other side complains. They take down right-wing lies and then instead of defending their decisions, they cower as conservatives complain that the platform is favoring the left.

But here’s the question: How would eliminating Section 230, as President Donald Trump is now demanding, solve the problem? Conservatives seem to believe that they can use Section 230 as a cudgel to force the platforms to stop “censoring” conservative speech.

In fact, rolling back Section 230 is likely to bring about more censorship not less. Fearful of lawsuits, the platforms will take down anything even remotely controversial, so that only the most inoffensive content remains. It’s hard to know what the answer is to how Facebook and Twitter should regulate speech. But this ain’t it. — JOE NOCERA

Libel Protection Requires Different Solution

Not long ago, a friend of mine was libeled on a social media platform. Under current legal standards, he would have been entitled to obtain a damage award against the writer — and also the publisher if the libel had been published in (say) the Washington Post.

My friend asked the platform to remove the libelous statement. Armed with a lawyer, he was able to make his request to people at a high level. They declined. They did not deny that the statement was libelous, but they thought that removing it would cause a lot of trouble.

In my view, this little tale shows that it is too crude to say “yes” or “no” to the question whether Congress should eliminate section 230 of the Communications Decency Act, which states, “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."

On the one hand, there is a good argument that Facebook, Twitter and the rest ought not to be treated as publishers or speakers. If someone puts up a libelous statement at 11 PM on Saturday night, it is unrealistic to think that social media platforms can remove it instantly. Should they really be subjected to damage awards whenever a libelous statement appears on their platform?

On the other hand, there is a strong argument that Facebook, Twitter, and the rest ought to be required to remove libelous statements after appropriate notice — and that they should be subjected to damage awards if they fail to do so.

Libel is just one category of speech, of course; there is also hate speech, misinformation, speech that promotes violence, terrorism, cyberstalking and much more.

What is necessary is not a simple “repeal” of Section 230, but an approach that recognizes that (1) social media platforms are not publishers in the ordinary sense and (2) social media platforms should no longer have anything close to blanket immunity for what appears on their platforms. — CASS R. SUNSTEIN

Do Republicans Want a Regulatory Morass?

Politicians are clamoring to revamp Section 230 amid the uproar over how Big Tech does content moderation. But both sides of the aisle should reassess if their proposals may do more harm than good.

Democrats want the law repealed, citing the rampant misinformation and the amplification of falsehoods on social media platforms. However, I’m not sure removing legal protections over hosting user-generated content will lead to desirable outcomes. In fact, it would likely strengthen the hand of the large incumbents as they can easily afford the higher costs to fend off frivolous lawsuits, while smaller innovative upstarts may be overwhelmed by legal fees.

On the other hand, Republicans are asking for an overhaul based on the alleged censorship against conservative views. But where does one draw the line on bias? It’s not easy. Any government attempt to mandate political neutrality is also bound to be a regulatory morass and a massive compliance burden — the opposite of conservative principles. Further, a repeal of the law would push companies to lower their legal exposure by quickly removing the very controversial content the GOP is trying to protect.

Finally, we shouldn’t overlook how Section 230 has been instrumental in creating the environment necessary for a thriving internet and one of America’s biggest success stories: Silicon Valley. It should, by in large, be left alone. — TAE KIM

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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