Does Section 230 Need Fixing?
from the that-would-be-no dept
Unfortunately, I don't find his arguments convincing, and believe they make a few logical leaps and some questionable assumptions. First of all, he seems to suggest that there are a whole bunch of sites that now use section 230 to "hide" and to encourage defamatory or libelous content. While there have been a few such sites here and there, they're mostly pretty rare. And.. more importantly, in most cases, social mores can handle such sites. As people learn about the nature of such sites, they take the content found on them a lot less seriously. Second, he suggests that Section 230 provides extra protections online compared to the offline world. This is an argument that anti-Section 230 people have made time and time again, but it's been debunked. The purpose of Section 230 was never to allow the internet to flourish under some sort of special "libel subsidy" as Thompson implies, but to make sure that liability is properly assigned to the party who actually did the action, rather than a third party. Thompson's examples of it being treated "differently" in the real world mostly involve situations where the third parties had a much more active role in the activity. In the cases where that's not true, such as swap meets being liable for infringing goods sold at their sites, I'd argue that the problem is with the offline world laws -- and that they should be fixed to properly apply liability.
As for the gratuitous "blame Google" aspect, I think that Thompson and other Section 230-haters are overplaying the actual impact of finding content people don't like on Google. So many people seem to assume that if there's "bad" content found on Google about them, that it automatically destroys their reputation. There may be a few extreme cases of that being true, but in most cases, people are actually adapting and do realize that not all content they find online is trustworthy. Thompson and others seem to assume most internet surfers are stupid. I'm not sure that's an assumption that we should make.
Finally, in his "solution" post he claims that the idea that we need Section 230 to help the internet is disproved by the fact that almost no other country has Section 230-like protections, and the internet still functions there. He lists out a bunch of other countries, but doesn't seem to realize that the situation on the ground in those countries disproves his point:
But in fifteen years of experience, we've seen that CDA 230 is not required for a thriving Internet. Europe does not have a statute equivalent to CDA 230, the U.K. has stricter libel laws than the United States, and Directive 2000/31/EC requires EU member nations to enforce libel laws online. But some estimates suggest that Internet use is actually higher in the U.K. than the U.S. The same goes for Japan (hosts may be liable if they have knowledge of libel, higher Internet use than the U.S.) and Canada (hosts immune only if "innocent dissemination" higher Internet use than U.S.). Fast-growing nations like Brazil have experienced ten-fold increases in Internet use in the last decade, even without a local version of CDA 230.Indeed. But if you look at the UK, this has created massive problems with libel tourism and ridiculous libel cases filed on a regular basis, causing serious harm. In fact, there's an effort underway in the UK to not just reform libel laws, but to get Section 230-like protections put in place, because they realize it's important to protect liability from being falsely applied. The same is true in Canada, where a bunch of recent libel cases have driven home the massive problems of not having such protections -- allowing people to use Canadian defamation law to silence critics, rather than to actually protect against libel. In Japan, the effort of making hosts liable has had some chilling effects on certain services, that have cracked down on the ability to have free and open conversations in some forums. These aren't examples to aspire to. They're examples of why those countries need Section 230-like protections. The mistaken assumption Thompson makes is that the entire purpose of Section 230 is to "help the internet survive." It's not. It's to properly apply liability.
Finally, what is his suggestion to "fix" Section 230? It's to only grant Section 230 protections to sites that do data retention on users, so that they can be tracked down if there's a libel claim. He acts as if this is a simple requirement. He's wrong. This has all sorts of problems. First, it puts a real cost on sites that want this kind of protection. Second, it takes away some freedom to comment truly anonymously by some users, which could put a serious chilling effect on certain types of important speech. Third, it opens up a serious opportunity for data breaches and data abuse. We should be encouraging the world to go in the other direction.
Thankfully, many of the comments in response to Thompson's posts make these points -- and more. The overall problem is that Thompson has set up a rationale for Section 230 that is not accurate, and a world that does not exist to justify his plan.