Thursday, October 11, 2012
Katie Couric show, in passing, mentions "controversy" over Section 230; a new proposal to change it?
On the Katie Couric show on October 10, attorney Parry Aftab mentioned (without explicit section name) Section 230 of the Telecommunications Act of 1996, which included the Communications Decency Act, of which censorship provisions were removed on First Amendment grounds by the Supreme Court in the summer of 1997.
The show was primarily about chat rooms in which adult men attract underage targets, who are often decoy police. Parry made the point that the 1996 law would exempt service providers from any liability (including civil) for harm that comes (to minors) by the use of their chatrooms. She might have been implying that this should change. (See my COPA blog, posting Oct. 10).
Section 230 is usually discussed in terms of protecting service providers (like Blogger, YouTube) from downstream liability for libel or for invasion of privacy (which sometimes is closely related in practice). But it provides protection against most possible torts (like negligent publication, right of publicity), but not copyright (covered by the DMCA Safe Harbor, a totally separate beast).
The Citizen Media Law Project has a primer on what Section 230 covers. The link is here.
It’s interesting and important that the downstream liability protections apply with reasonable extension. For example, the service provider can edit the materials without changing meaning, solicit articles, pay for articles, or supply forms or automated scripts to submit articles. It does not have to take down defamatory content upon a complaint, but if it promises to do so and then does not, it might incur liability.
This summer, there was a proposal (by Joe Lieberman) to weaken Section 230 protections with the use of the words “Good Samaritan” (apparently requiring a "good samaritan" or "whistleblowing" intent before immunity applies). Proponents of this legislated change claim that other media like newspapers don’t enjoy this protection (I thought they did have immunity, when they get comments from users to a news story and act essentially as a “service provider” or “utility” rather than “publisher” or “distributor”). See “Rexxfield” here.