Olivier Sylvain was quoted in a Huffington Post article about Section 203, a law that immunizes digital platforms from liability for third party–created content.
Twitter cannot be held legally liable for anything that appears on its platform. Nor could Facebook or YouTube be held responsible for the harm done to Sandy Hook parents by conspiracy-monger Alex Jones, who was banned from those digital platforms on Monday. That’s because of a short provision in a 1996 law that gives online intermediaries immunity from liability for any third-party content posted to or hosted on their platforms. The provision, known as Section 230, has become the legal building block for much of what we cherish about the internet today, and proponents of the law believe that the internet ecosystem of Google, Facebook, YouTube, Twitter, Reddit, Craigslist, Tumblr and so on would not be tenable without it.
Supporters of the law claim that any tiny deviation from total legal immunity would destroy the internet and suppress free speech. They consider any changing of Section 230 akin to amending the First Amendment.
Olivier Sylvain, a Fordham Law School professor and a critic of the broad reading of Section 230’s immunity provision, doesn’t see the legislative text of Section 230 as “creating a blanket immunity” for online sites from liability. Instead, he believes the law should be read as providing immunity from liability to sites “that take good faith efforts to take down objectionable material.”
But it was the courts, Sylvain argued, that read the provision very broadly and interpreted it as a blanket immunity for intermediaries.
The problems with platform immunity are not limited to harassment. Digital platforms can also claim Section 230 immunity from discrimination laws. Sylvain uses Facebook’s targeted advertising platform as an example.
Soon after the adoption of Section 230 in the 1990s, libertarian-minded scholars believed that the immunity the law provided would create a “marketplace of rules” among various online communities. One site might allow nudity or racism while another could be more restrictive (or inclusive). People could then choose which site they preferred to be on.
That’s not how it turned out in the current digital ecosystems, where the online speech platforms monopolize entire sectors to the point where it is practically impossible to not use them. “I don’t really think we can say there’s a marketplace for rules in social media,” Sylvain said. “Who’s a competitor to Facebook?”