On Wednesday, the Department of Justice (DOJ) announced that it sent draft legislation to reform Section 230 of the Communications Decency Act to Congress. The draft implements reforms that the DOJ declared necessary in its June Recommendations after review of the statute. Additionally, the draft is designed to execute the President’s Executive Order to prevent censorship online. Section 230 generally provides a liabiltiy shield to communications platforms for harms arising from the content on those platforms.
“For too long Section 230 has provided a shield for online platforms to operate with impunity,” Attorney General William P. Barr said. “Ensuring that the internet is a safe, but also vibrant, open and competitive environment is vitally important to America. We therefore urge Congress to make these necessary reforms to Section 230 and begin to hold online platforms accountable both when they unlawfully censor speech and when they knowingly facilitate criminal activity online.”
In particular, the DOJ identified four areas for reform: “incentivizing online platforms to address illicit content”; “clarifying federal enforcement capabilities to address unlawful content”; “promoting competition”; and “promoting open discourse and greater transparency.”
Specifically, the draft seeks to encourage “platforms to address the growing amount of illicit content online, while preserving the core of Section 230’s immunity for defamation claims.” The DOJ noted that “Section 230 immunity is meant to incentivize and protect online Good Samaritans. Platforms that purposely solicit and facilitate harmful activity – in effect, online Bad Samaritans – should not receive the benefits of this immunity. Nor should a platform receive blanket immunity for continuing to host known criminal content on its services, despite repeated pleas from victims to take action.” Thus, the proposed framework would provide a carve-out for so-called “Bad Samaritans” as well as carve-outs for child abuse, terrorism, cyberstalking, and other offenses.
Additionally, the DOJ said it would clarify the federal antitrust claims that Section 230 immunity does not cover. The DOJ noted that there are only a few large online entities that enable speech, “(i)t makes little sense to enable large online platforms (particularly dominant ones) to invoke Section 230 immunity in antitrust cases, where liability is based on harm to competition, not on third-party speech.”
Lastly, the draft legislation seeks to reform Section 230 in order to “promote transparency and open discourse and ensure that platforms are fairer to the public when removing unlawful speech from their services.” In particular, the DOJ claimed that Section 230 is currently interpreted in a way that has “enabled online platforms to hide behind the immunity to censor lawful speech in bad faith and is inconsistent with their own terms of service.” To resolve this situation, the DOJ seeks to revise and clarify Section 230 language and replace vague terms that could be used arbitrarily for content moderation with more “concrete language.”
“The Department’s proposal is an important step in reforming Section 230 to further its original goal: providing liability protection to encourage good behavior online,” Deputy Attorney General Jeffrey A. Rosen said. “The proposal makes clear that, when interactive computer services willfully distribute illegal material or moderate content in bad faith, Section 230 should not shield them from the consequences of their actions.”
