Emerging Threats to Section 230

by on May 14, 2009 · 13 comments

As faithful readers no doubt know, I’m a big fan of Section 230 and believe it has been the foundation of a great many of the online freedoms we enjoy (dare I say, take for granted?) today. That’s why I’m increasingly concerned about some of the emerging thinking and case law I am seeing on this front, which takes a decidedly anti-230 tone.

Consider, for example, how some might weaken Sec. 230 in the name of “child safety.”  You will recall the friendly debate about the future of Sec. 230 that I engaged in with Harvard’s John Palfrey.  Prof. Palfrey has argued that: “The scope of the immunity the CDA provides for online service providers is too broad” and that the law “should not preclude parents from bringing a claim of negligence against [a social networking site] for failing to protect the safety of its users.”  Similarly, Andrew LaVallee of The Wall Street Journal reported from a conference this week that Sec. 230 became everyone’s favorite whipping boy, with several participants suggesting that the law needs to be re-opened and altered to somehow solve online “cyber-bullying” problems.

There’s also some potential trouble brewing in the courts, as Braden Cox noted recently.  As usual, the prolific Eric Goldman has the best summary of what’s been going on over at his Technology & Marketing Law Blog. After Eric’s takes a close look at the most recent 230-related case of Barnes v. Yahoo!, Inc., which contained some troubling language about 230, he continues on to note:

47 USC 230 has weathered plaintiff attacks very well in the past dozen years, but the last 6 months have opened up a number of angles for plaintiffs to explore. Consider the track record:

* Woodhull (October): soliciting and publishing a defamatory third party email wasn’t covered by 230
* Doe v. SexSearch (December): as mentioned, the court stepped back from saying 230 preempted liability for marketing representations
* StubHub (January): interference with business claim wasn’t preempted by 230
* Gourlay (March): web host who provided extra commercial services to its customer couldn’t claim 230
* Project Playlist (March): 230 doesn’t preempt state IP claims (this is a loss only because it contravenes the wrongly decided Ninth Circuit ccBill case, which was more defense-favorable).
* This case, saying that a promissory estoppel claim isn’t preempted by 230.

I’m not sure what to make of this trend, but it’s clear that we’re finally finding some substantial limits in 230’s reach, and that’s creating new litigation opportunities for plaintiffs.

And let’s be clear about why these trends are so troubling. Keeping online intermediaries free from burdensome policing requirements and liability threats has created the vibrant marketplace of expression and commerce that we enjoy today. If not for Sec. 230, we would likely live in a very different world today.  The alternative approach of strict secondary liability on ISPs and other online intermediaries would have a profound “chilling effect” on online free speech and expression.  That’s why Sec. 230 is so important, and worth defending.

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