Section 230 Basics: There Is No Such Thing As A Publisher-Or-Platform Distinction
from the foundational-understanding dept
We’ve said it before, many times: there is no such thing as a publisher/platform distinction in Section 230. But in those posts we also said other things about how Section 230 works, and perhaps doing so obscured that basic point. So just in case we’ll say it again here, simply and clearly: there is no such thing as a publisher/platform distinction in Section 230. The idea that anyone could gain or lose the immunity the statute provides depending on which one they are is completely and utterly wrong.
In fact, the word “platform” does not even show up in the statute. Instead the statute uses the term “interactive computer service provider.” The idea of a “service provider” is a meaningful one, because the whole point of Section 230 is to make sure that the people who provide the services that facilitate others’ use of the Internet are protected in order for them to be able to continue to provide those services. We give them immunity from the legal consequences of how people use those services because without it they wouldn’t be able to ? it would simply be too risky.
But saying “interactive computer service provider” is a mouthful, and it also can get a little confusing because we sometimes say “internet service provider” to mean just a certain kind of interactive computer service provider, when Section 230 is not nearly so specific. Section 230 applies to all kinds of service providers, from ISPs to email services, from search engines to social media providers, from the dial-up services we knew in the 1990s back when Section 230 was passed to whatever new services have yet to be invented. There is no limit to the kinds of services Section 230 applies to. It simply applies to anyone and everyone, including individual people, who are somehow providing someone else the ability to use online computing. (See Section 230(f)(2).)
So for shorthand people have started to colloquially refer to protected service providers as “platforms.” Because statutes are technical creatures it is not generally a good idea to use shorthand terms in place of the precise ones used by the statutes; often too much important meaning can be lost in the translation. But in this case “platform” is a tolerable synonym for most of our policy discussions because it still captures the essential idea: a Section 230-protected “platform” is the service that enables someone else to use the Internet.
Which brings us to the term “publisher,” which does appear in the statute. In particular it appears in the critically important provision at Section 230(c)(1), which does most of the work making Section 230 work:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
In this provision the term “publisher” (or “speaker”) refers to the creator of the content at issue. Who did? Was it the provider of the computer service, aka the platform itself? Or was it someone else? Because if it had been someone else, if the information at issue had been “provided by another information content provider,” then we don’t get to treat the platform as the “publisher or speaker” of that information ? and it is therefore immune from liability for it.
Where the confusion has arisen is in the use of the term “publisher” in another context as courts have interpreted Section 230. Sometimes the term “publisher” itself means “facilitator” or “distributor” of someone else’s content. When courts first started thinking about Section 230 (see, e.g., Zeran v. AOL) they sometimes used the term because it helped them understand what Section 230 was trying to accomplish. It was trying to protect the facilitator or distributor of others’ expression ? or, in other words, the platform people used to make that expression ? and using the term “publisher” from our pre-Section 230 understanding of media law helped the courts recognize the legal effect of the statute.
Using the term did not, however, change that effect. Or the basic operation of the statute. The core question in any Section 230 analysis has always been: who originated the content at issue? That a platform may have “published” it by facilitating its appearance on the Internet does not make it the publisher for purposes of determining legal responsibility for it, because “publishing” is not the same as “creating.” And Section 230 ? and all the court cases interpreting it ? have made clear that it is only the creator who can be held liable for what was created.
There are plenty of things we can still argue about regarding Section 230, but whether someone is a publisher versus a platform should not be one of them. It is only the creator v. facilitator distinction that matters.