As an internet defamation attorney, I’d like to weigh in on the risks of supporting the repeal of Section 230 without knowing the ins and outs of the law and who would be affected. It’s shocking how many people advocate for Section 230 reforms without clear knowledge of how it works. What’s even more surprising is when experts try to highlight where the facts, these “reformers” are unwilling to admit to their inaccurate assumptions and are even more vehement that their opinion is correct.
Dean Baker, a well-known economist, isn’t shy about his stance on the topic – but he seems to lack understanding of the consequences dismantling section 230 would cause. Over a year ago, he wrote a couple of misleading blog posts advocating for the full repeal of Section 230. Both of which indicate he doesn’t understand how 230 works, its interplay with the 1st Amendment, and how defamation law works.
Although Dean’s latest proposal doesn’t recommend a full repeal of Section 230, it still misunderstands the way the law functions. Baker theorizes that only subscription supported sites should reap the benefits of section 230. This assumption claims that not allowing sites that use advertising to be protected by 230, would force them to downsize, which is absurd. He seems to be specifically targeting Facebook with his notions; however, Section 230 protects other sites to a much higher degree than it does Facebook. Removing the law that allows the internet to function as we know it will not force Big Tech companies like Facebook to shrink and forcing paywalls on all websites isn’t exactly for the greater good of society.
I’d like people to understand that the real benefit from Section 230 is in the procedural benefits it provides rather than the underlying protection from liability. It helps companies get out of frivolous lawsuits at an earlier stage before millions of dollars have been spent in litigation. In many cases, there is no underlying cause of action that will create liability. An example of a case that has made it through the Section 230 hurdle is the Fair Housing v. Roommates case, which determined that while 230 protected Rommates.com from user created content, it did not protect the company from liability for the pull-down menus it created.
However, that doesn’t mean they lost. In fact, after years of litigation, it was determined that Roomates.com didn’t violate the law. The same is true in the more recent case that bypassed Section 230, the Enigma Software vs. Malwarebytes case. In that case, the court argued that Malwarebytes didn’t get Section 230 protection in cases where malware designation might be deemed anti-competitive. Many years later, Malwarebytes still won.
Both cases show that Section 230 doesn’t remove all liability, but it does allow cases that wouldn’t make it through the whole litigation process to be dismissed early on. Essentially, it protects against frivolous lawsuits, which helps smaller companies more than platforms like Facebook. Facebook, YouTube, Twitter, etc. have the money to litigate these cases all the way through, and they would still likely win in the end. Smaller companies cannot afford the costs, which can add up to 7 or 8 figures by the time all is said and done. Ultimately, Section 230 reform would hurt smaller platforms more than any of the big ones.