Tuesday, January 29, 2013

Co-founder of "Ratingz" explains importance of Section 230, downstream liability immunity

Electronic Frontier Foundation has just (Jan. 28, 2013) added another report to its “CDA230 Success Cates”, that is, “The Ratingz Network” (website url link), with cofounder John Swapceinski, link here.
CDA230 refers to Section 230 of the Telecommunications Act of 1996, which had also comprised the Communications Decency Act (CDA), the censorship provisions of which were struck down by the Supreme Court in June 1997 (I actually heard some of the oral arguments in March), while the downstream liability exemptions for libel for service providers remained intact.

Swapceinski reports constant harassment by lawyers, many of whom make facetious claims or seem to be trying to bully the providers, thinking that a service provider doesn’t know about the law. 
He says that his business couldn’t last a month without Section 230.

Some people argue that service providers have deep pockets (not always) and that there is a tradeoff between spontaneity of user-generated content, and protection of businesses from malicious posters or even of children from cyberbullying.  Over time, calls to weaken Section 230 protections could become as problematic as SOPA was. (See Youtube video on Oct. 11, 2012 posting.  YouTube also has a disturbing post about “Hunter Moore”.)  

Removal of downstream liability immunity would also affect blogging platforms (like this one), YouTube, and even ordinary shared web hosting. 

One possible measure would be that users might have to indemnify providers against downstream liability personally.  Book publishers already do that, and some web hosting service do that, although the contract clauses are rarely invoked in practice.  But in a future scenario, people could have to make deposits, which could lead to a scenario where only rich people speak.  And we might not have an Aaron Swartz around to stop it.

Another way this could play out could be mandatory individual liability insurance.  Voluntary insurance for bloggers was offered by the Media Bloggers Association in the fall of 2008, but I’m not sure it got anywhere.  I covered this issue then.

Asjley Hurst discusses “Intermediate Liability on the Internet” for the Stanford CIS (Center for Internet and Society) here.

It’s a full hour to watch it.  

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