Cathy Gellis

They say that bad facts make bad law. What makes Zeran v. AOL stand as a seminal case in §230 jurisprudence is that its bad facts didn’t. The Fourth Circuit wisely refused to be driven from its principled statutory conclusion even in the face of a compelling reason to do otherwise, and thus the greater good was served.

Mr. Zeran’s was not the last hard case to pass through the courts. Over the years there have been many worthy victims who have sought redress for legally cognizable injuries caused by others’ use of online services. And many, like Mr. Zeran, have been unlikely to easily obtain it from the party who actually did them the harm. In these cases courts have been left with an apparently stark choice: compel the Internet service provider to compensate for the harm caused to the plaintiff by others’ use of their services, or leave the plaintiff with potentially no remedy at all. It can be tremendously tempting to want to make someone, anyone, pay for harm caused to the person before them. But Zeran provided early guidance that it was possible to resist the temptation to ignore §230’s liability limitations – and early evidence that it was right to so resist.

Section 230 is a law that itself counsels a light touch. In order to get the most good content on the Internet and the least bad, Congress codified a policy that is essentially all carrot and no stick. By taking the proverbial gun away from an online service provider’s proverbial head, Congress created the incentive for service providers to be partners in achieving that policy goal. It did this in two complementary ways: First, it encouraged the most beneficial content by insulating providers for liability arising from how other people used their services. Second, Congress also sought to ensure there would be the least amount of bad content online by insulating providers from liability if they did indeed act to remove it.

By removing the threat of potentially ruinous liability, or even just the immense cost of finding itself on the receiving end of legal action arising from how others have used their services, more and more service providers have been able to come into existence and enable more and more uses of their systems. These providers have also been able to resist unduly censoring legitimate uses of their systems as a means of limiting their legal risk. And by being left with the discretion to choose what uses to allow or disallow from their systems, service providers have been free to allocate their resources more effectively to police undesirable use of their systems and services than if the threat of liability instead forced them to divert their resources in ways that might not be appropriate for their platforms, optimal, or even useful at all.

Congress could of course have addressed the developing Internet with an alternative policy, one that was more stick than carrot and that threatened penalties instead of offering liability limitations, but such a law would not have met its twin goals of encouraging the most good content and the least bad nearly as well as §230 actually has. In fact, it likely would have had the opposite effect, eliminating more good content and missing more of the bad. The wisdom of Congress, and of the Zeran court, was in realizing that restraint was a better option.

The challenge we are faced with now is keeping courts, and §230’s critics, similarly aware. The problem is that the §230 policy balance is one that works well generally, but not always specifically, and not always in ways people readily recognize. The reality is that people sometimes do use Internet services in bad ways, and these uses can often be extremely visible. What appears to be less visible, however, is how many good uses of the Internet §230 has enabled to be developed. In the 20-plus years since Zeran people have moved on from AOL to countless new Internet services, which now serve nearly 90 percent of all Americans and billions of users worldwide. Internet access has gone from slow modem-driven dial-up to seamless always-on broadband. We email, we tweet, we buy things, we date, we comment, we argue, we read, we research, we share what we know, all thanks to the services made possible by §230, but often without awareness of how much we owe to it and the early Zeran decision upholding its tenets. We even complain about §230 using services that §230 has enabled, and often without any recognition of the irony.

In a sense, §230 is potentially in jeopardy of becoming a victim of its own success. It’s easy to see when things go wrong, but §230 has done so well creating a new normalcy that it’s much harder to see just how much it has allowed to go right. Which means that when things do go wrong – as they inevitably will, because while § 230 tries to minimize the bad uses of online services it’s impossible to eliminate them all—we are always at risk of letting our outrage at the specific injustice cause us to be tempted to kill the golden goose by upending something that on the whole has enabled so much good.

When bad things happen there is a natural urge to clamp down, to try to seize control over a situation where it feels like there is none. In that microcosm the hands-off approach of §230 can seem like the wrong one, but Zeran has shown how it is still very much the right one.

In many ways the Zeran court was ahead of its time: unlike later courts that have been able to point to the success of the Internet to underpin their decisions upholding §230, the Zeran court had to take a leap of faith that the policy goals behind the statute would be born out as Congress intended. It turned out to be a faith that was not misplaced. Today it is hard to imagine a world without all that §230 has ushered in. But if we fail to heed the lessons of Zeran and exercise the same restraint it did, such a world may well be what comes to pass. As we mark 20 years since the Zeran court affirmed §230 we need to continue to carry its lessons forward in order to ensure that we are not also marking its sunset and closing the door on all §230 might yet bring.

 

Cathy Gellis is a technology lawyer in the San Francisco Bay Area with a practice focused on intellectual property, free speech, privacy, and other innovation policy matters, especially as they pertain to Internet platforms. She regularly files amicus briefs in key cases exploring these issues, participates in related regulatory proceedings, speaks to legal and lay audiences around the world, and writes about the policy implications of technology regulation on Techdirt.com and other widely-read publications. In a previous life she was an aspiring journalist who then became an Internet professional, where she developed and managed websites for enterprises in Silicon Valley and Europe.

This essay is part of a larger collection about the impact of Zeran v. AOL curated by Eric Goldman and Jeff Kosseff.