Sometimes obscure legal matters turn out to play key roles in huge areas of life. A case in point is a law I had not given any thought to recently: Section 230 of the Communications Decency Act of 1996. As it has been under attack lately from various quarters, it might be worthwhile to examine what it says and explore its ramifications for how the internet is used, as the law also has defenders such as Charles C. W. Cooke of National Review, whose recent article about Section 230 brought my attention to it.
The law has to do with who should be sued for libel if someone gets libelled. Not being a lawyer, I am no expert on libel, but my man-on-the-street understanding is that in the US, if someone knowingly and maliciously says something about you that is demonstrably false, you can sue them for libel. If it’s just a guy standing on a street corner shouting insults about you, identifying the party to sue is pretty simple. But what if the alleged libel was carried by some sort of medium of communication? Then it depends.
Let’s take two extremes and then see how the internet falls in between.
Back in the glory days of newspapers, say the 1930s, the newspaper’s publisher was responsible for pretty much anything that was said on the editorial pages of the paper. That’s because the editors (who worked for the publisher) actively selected and sometimes wrote the editorial material themselves. So it’s only reasonable to allow people who feel they’ve been libelled by a paper to sue that paper, because the paper was the effective speaker or publisher of the libel.
Now go to the other extreme: the telephone system of the 1930s. All that Ma Bell promised to do was to let two people talk with each other. What they said was none of her concern. If Mr. A called up Mr. B and said something libellous about Mr. C, no one in their right mind would think it was appropriate for the libelled Mr. C to sue Ma Bell for libel. Mr. A was the person committing the libel, and the telephone company was a completely passive participant, simply serving as a messenger and having no part in or responsibility for the libel itself.
And then in the 1990s along came the internet, and some clever inventors had the bright idea of “hosting” third-party content on websites, and letting users put up their own material. But in certain lawsuits that arose around then, the courts couldn’t make up their minds whether an internet service provider was more like a newspaper publisher—who could indeed be sued for libellous content in his paper—or like a telephone company, simply passively conveying messages for which the company bore no responsibility. Congress decided, and President Bill Clinton signed, the Communications Decency Act of 1996, whose Section 230 contains these fateful 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.”
So to use a germane example, when President Trump tweets something about, well, anything, it’s not Twitter that is at fault if someone thinks the President is libelling him or her. It’s the President’s sole responsibility, and so on all the way down to the lowliest user of the internet, whoever that might be at the moment (yours truly excepted, I hope).
There are exceptions, of course, for heinous stuff such as sex-trafficking and so on. You can still go after internet companies who harbor such things. But as Charles C. W. Cooke points out, the immunity from libel lawsuits applies even if the service provider moderates or otherwise curates the content. So if Twitter begins to run a spell-checker over President Trump’s tweets and corrects his spelling, that still doesn’t make Twitter the publisher of that content, as far as Section 230 is concerned.
Some people don’t like the way that the large media companies selectively edit or suppress certain sites and types of speech, and Cooke cites Senator Josh Hawley as wanting to repeal Section 230 altogether in something that would look a lot like revenge. Repeal would mean that if some crank on Facebook called your mother an indecent word, for example, you could sue not only the guy who posted the insult but Facebook as well.
One thing we can be sure of: if Section 230 was repealed, with the prospect of all that internet-generated wealth in the offing we’d have huge flocks of lawyers descending on Google, Facebook, Twitter and company like buzzards after a dead deer. While it might not kill the free-speech aspect of the internet altogether, it would certainly cripple it severely. The world needs a lot of things right now, but more lawyers filing more lawsuits is probably not one of them.
Are things just hunky-dory with regard to libellous and otherwise harmful internet content? By no means. Michael Cook, who edits MercatorNet (which republishes my blog posts from time to time) recently drew my attention to one of the worst abuses of the sophisticated digital trickery known as deepfakes: the practice of merging the faces of well-known people, or even unsuspecting female victims whose pictures are harvestable from the internet, onto pornographic images that are then sold to whoever wants them.
Currently, the only recourse such victims have is to try to sue the parties responsible, but even finding them can be a difficult challenge and most people simply don’t have the resources to do so. In my opinion, pornographic deepfakery should be a criminal offense, like rape, as it is essentially a virtual digital version of that crime.
As we mentioned, Section 230 doesn’t prevent lawsuits that go after the originators of such content as pornographic deepfakes, so repealing it wouldn’t help in that situation. Overall, history seems to show that Section 230 has done more good than harm, and repealing or seriously modifying it would have effects that nearly everyone might regret later—except maybe lawyers.