Twenty-one years after the enactment of the Communications Decency Act, from which §230 survived, and 20 years after the U.S. Court of Appeals for the Fourth Circuit’s opinion in Zeran v. AOL, which set the standard by which §230 was to be interpreted, an increasing number of voices are questioning §230’s scope. The concerns that motivated §230—balancing the flourishing of the Internet against the very real likelihood that some participants would use it for socially undesirable, hateful, or threatening behavior—continue to be relevant today. Indeed, what seems to be a rise in hate speech, false information, and threatening behavior has suggested to some that the balance that Congress struck, and that the Fourth Circuit validated, should be reconsidered.
Section 230 states that “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” and that “no provider or user of an interactive computer service shall be held liable” on account of any good faith, voluntary actions to restrict access to material that the provider or user considers to be objectionable. In short, service providers may either publish the material of others or remove the material of others without risk of liability as a publisher or speaker of that material. The assumption is that without such protections, and given the vast amount of user-generated content on the Internet, providers will blindly delete any material claimed to be objectionable rather than risk liability for making the wrong judgment. Section 230 received its first major test when Kenneth Zeran sued America Online, seeking recompense for the harassment he suffered when unknown parties reacted to a false posting on the service claiming that a “Ken” at his business telephone number was selling offensive T-shirts relating to the Oklahoma City bombing. The Fourth Circuit interpreted §230 to bar liability, given that AOL was not the author of the posting and despite AOL’s reported inaction in the face of Zeran’s requests to immediately remove the posting. (Disclosure: I served as in-house counsel at America Online for three years in the early 2000s.)
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