An originally obscure provision of the Communications Decency Act (“CDA”) of 1996, Section 230 provides 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.”
In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (“ISPs”), but also a range of service providers, including basically any online service that publishes third-party content.
From its originally obscure origins, Section 230 of the CDA has come to be viewed as a touchstone of freedom of expression online, and is considered by many to have been a key liberty allowing for the massive growth of online platforms in the decades since its original adoption.
Recently, political focus has turned to the reform or repeal of Section 230, in a manner that could have significant impact on the business models and potential legal liability of online services providers ranging from ISPs to “over the top” services such as social networks, review platforms, search engines and video or image hosting services. In short, the potential implications are profound, and carry significant antitrust implications, not least in terms of potential legal liability for potentially “biased” or “exclusionary” moderation that service providers may find themselves obliged to engage in under any potential reform.
Needless to say, this debate has raised significant controversy from stakeholders, free speech advocates, and within the antitrust community. The contributions in this Chronicle seek to unify the threads of this debate, with a particular focus on the implications of Section 230 of the CDA (and any potential reform thereof) for antitrust enforcement, and how it interacts with other legal provisions, notably the First Amendment and aspects of telecommunications regulation.
Perhaps more than any other aspect of contemporary regulation, this question merits a cross-disciplinary approach, and the articles presented here form a vital part of this ongoing debate.
As always, thank you to our great panel of authors.