Section 230 Doesn’t Just Protect the Internet — Newspapers and TV Stations Rely On It Too
Section 230 is based on the vital principle of conduit immunity — a principle relied on from cable news to bookshops to social media.
The law that powers the internet, Section 230 of the Communications Decency Act (1996), is constantly mischaracterized. To some, it’s the law that makes online platforms like Yelp, GoFundme, and Change.org possible. To others it’s reason bad content exists online.
Firstly, Section 230 guarantees that services that host are not liable for content posted by others, bar some exemptions. Section 230 also enables platforms to remove or otherwise moderate objectionable content without assuming liability.
Secondly, some politicians call Section 230 a “gift” to technology companies like Facebook, Google, and Twitter — which suggests that Section 230 is some special privilege that only tech services enjoy.
Both beliefs are false: Section 230 was passed three years before anyone Googled something and a decade before Twitter stepped onto the scene.
Section 230 isn’t a government handout to Big Tech. Instead it simply codified over seventy years of Court Doctrine — doctrine that has benefited various industries across the country rather than just tech.
In decision after decision, courts have applied what’s called “conduit immunity” in cases where content distributors were being sued for lawbreaking content.
Conduit immunity is where content creators — not distributors — are held liable for lawbreaking content. Traditionally the U.S. has preferred to hold the creators of lawbreaking content liable, rather than those who happen to distribute it.
This is because content creators are far better prepared to know if their content is legally compliant, such as if it risks breaking copyright. Holding distributors liable would also make it much harder for them to host large amounts of content, as a bookstore or a newspaper does. Preferring not to hold distributors liable therefore also protects free speech.
Recently former Vice-President Biden recently said that CNN is liable for untruthful statements made by candidates on air, but this isn’t true.
For example, Barnes & Noble rely on conduit immunity. When a book defames someone, the harmed party can sue the book’s author, not Barnes & Noble.
This works because Barnes & Noble is less prepared than the author of a book to know whether the content of that book is defamatory — as it would need more information than the contents of the book. If Barnes & Noble was forced to clear every book they sold with an expensive investigative legal team before they could sell them, they wouldn’t be able to sell nearly as many books. If bookstores are unable to sell many books, the role of free speech in society would be diminished.
Newspapers like Newsweek and the Miami Herald relied on the notion of conduit immunity to avoid lawsuits. Courts found these newspapers immune for their republication and even summaries of libelous content from the newswire.
The Washington Post invoked conduit immunity as recently as 2013 to avoid liability for publication of false statements from its sources, too.
All Congress really did was codify this concept conduit immunity for the age of the internet.
But some politicians don’t understand what conduit immunity is, nor why it’s important. Recently former Vice-President Biden recently said that CNN is liable for untruthful statements made by candidates on air, but this isn’t true. TV news programs invoke conduit immunity to shield themselves from liability.
Even broadcasters of 60 Minutes have used conduit immunity to avoid liability for untruthful statements.
When not relying on the general legal principle of conduit immunity, newspapers and TV broadcasters have relied directly on Section 230 — a law they many in traditional media don’t think should exist.
In just the last few years alone, these newspapers used Section 230 to shield themselves from defamation lawsuits:
- Indiana newspaper Journal & Courier
- Illinois newspaper Moline Dispatch Publishing Company, LLC used Section 230 to dismiss a suit for defamatory user-posted comments on their comment boards
- Mississippi TV station WLOX used Section 230 to dismiss a defamation suit.
From big newspapers and media conglomerates, to those of us posting Yelp reviews — industries around the country . Without it, companies will think twice about showing negative, though honest, consumer reviews online and all of us would have fewer opportunities to share our opinions too.
For the sake of free speech, let’s newspapers and politicians get their facts straight and learn to appreciate Section 230.