Many people may think of media as media, no matter the format. However, the internet is not treated the same way that print or broadcast media are treated—at least from a legal standpoint.
The primary difference is that internet companies do not bear liability for third-party content. If an individual makes a defamatory statement about another person on an online platform, the internet company is not held liable. This isn’t true of other forms of media. For example, if someone writes a letter to the editor at a newspaper, wrongly accusing someone of a crime, the newspaper can be sued, along with whoever wrote the letter.
Radio and television stations can also be held liable for carrying an ad or promoting defamatory claims, as we’ve recently seen with Fox News and lawsuits by Dominion and Smartmatic voting systems. But again, this isn’t true when it comes to online advertising on sites such as Facebook. Why? The answer lies in Section 230 of the Communications Decency Act.
Section 230 Protects Online Companies
Enacted in 1996, Section 230 has two main parts: the first provides protection against liability for third-party speech allowed on a website, and the second protects against liability for content. Section 230 is what allows internet companies such as Facebook to circulate material that otherwise might lead to a defamation suit against another form of media.
The original intent of Section 230 was to protect internet companies from liability as well as to allow the general public to post content online and participate in a global conversation. Section 230 has done just that and has, in fact, has allowed internet companies to flourish under its protection.
However, the internet has changed dramatically since Section 230 became law. Over the last two decades, there has been a shift from mostly decentralized, interest-based message boards and online forums on smaller websites to a more centralized model, controlled by large commercial providers. Today, the online economy is booming and is predominately platform-mediated. The problem is that the consumer safeguards and civil rights protections that apply to other forms of media simply don’t exist on the internet.
Section 230 was meant to encourage internet service providers to screen and filter objectionable content posted on their sites, but instead, it has allowed these companies almost total immunity with little to no recourse.
Section 230 Reform
A number of attorneys are in favor of amending Section 230 in order to hold internet companies liable for defamation in a similar way that other forms of media are held liable.
While it may not be reasonable to expect a social media platform like Facebook or Twitter to monitor billions of daily posts, it is possible to change the law so that theses companies are responsible for defamatory content they choose not to remove after it has been called to their attention. They can also be held accountable for paid ads which are defamatory in nature.
In 2021, a bill known as the SAFE TECH Act was proposed. This amendment would remove Section 230 immunity regarding online advertisements and other paid services, and while the act (which has yet to become law) has its flaws, it is, at least, a step in the right direction.
An individual who has been defamed online should be able to pursue legal action against all parties responsible for their harm, including both the individual making the defamatory statement and the internet company allowing it to be broadcast to the world.