Big Tech changes its tune on Section 230 liability

What well-known person said the following this week: 

“[T]he debate about Section 230 [which gives legal immunity to Internet platforms] shows that people of all political persuasions are unhappy with the status quo. People want to... make sure that [online] platforms are held accountable.... I believe we need a more active role for governments and regulators...."

A: Donald Trump

B: Ted Cruz

C: Ed Markey 

D: Mark Zuckerberg 

Until recently, that statement could probably have come from any of the first 3. But at today’s Senate hearing on the Federal liability shield for Internet companies, it was Facebook CEO Zuckerberg who said it.  

Major Internet companies have started recognizing the public’s and Congress’ growing frustration over growing harms caused by the far-reaching liability protections contained in Section 230 of the Communications Act of 1996. Congress’ original intent back in 1996 was laudable. Section 230 established that an online platform (“interactive computer service”) could not be held liable for user-generated content posted to that platform. 

President Bill Clinton signed the Telecommunications Act of 1996 on February 8, 1996.  That year, in the U.S., America Online, which CNN termed “a heavyweight on the World Wide Web,” only had 5 million subscribers. Public wifi and home broadband did not exist. YouTube, the smartphone and mobile apps would be created more than a decade later. 

Nearly 25 years after Section 230 became law, there’s little doubt that although it has alleviated some legitimate liability problems, it has also created unintended consequences for consumers.  One of the most concerning is how Section 230 has become a default defense in many lawsuits involving Internet platforms profiting from sales of dangerous products.  As The Wall Street Journal reported about Amazon last October, “[T]hroughout Amazon’s business, the giant retailer runs its platform without many of the constraints that big U.S. companies apply to their products and stores, sometimes in ways that can put customers and workers in danger.” (emphasis added) 

Dangerous products sold through the online platform include sleeping mats the U.S. Food & Drug Administration warns can suffocate infants, unsafe motorcycle helmets, unregistered pesticides, and thousands of electronics falsely claiming to be UL-certified. 

The Journal’s reporting details the retailer’s extensive use of Section 230 as part of its product liability legal strategy. As one of its lawyers stated, “Basically, a third party was using Amazon as a bulletin board to advertise the product and sell.” 

It’s long past time for Congress to examine whether online consumers have lost important protections that exist if they bought from a physical store.

Section 230 was drafted for an Internet that no longer exists. Congress is right to review this liability exemption and determine if changes in language or implementation could benefit consumers.