The US Justice department has proposed legislation to curb the liability protections under existing law for internet platforms distributing third-party content. The department said it wants to "incentivise" internet companies to do more to take down and prevent illegal content online. This follows an order from the White House less than a month ago to look at ways to make social media companies more responsible for content on their platforms.
The justice department proposal will depend on members of Congress developing legislation and bringing it to the floor. It includes four recommendations for amending the existing Section 230 of the Communications Decency Act of 1996, which laid down the original principle of limited liability for internet platforms.
The justice department said it would preserve the core meaning of Section 230's immunity for defamation claims. However, it wants to consider fines for platforms that don't act to remove offensive content quickly or are "willfully blind" to criminal content on their sites. Similar to laws in place in Germany and Australia and under consideration in France and the UK, the threat of fines or other sanctions is expected to encourage sites to be more pro-active in policing and removing criminal content.
'Good faith' defnition
In addition, the DoJ wants internet platforms to be more transparent about how they police content, or they could face losing their liability protection. The current legislation allows protection from claims if companies can show they acted in 'good faith'. The DoJ wants a legal definition of good faith that is based on companies publicly stating their content policies "with plain and particular terms of service" and acting "consistent with public representations".
Legislation to this effect was introduced the same day in the Republican-controlled Senate by Josh Hawley, a Republican senator from Missouri. If approved, his law would allow Americans to sue internet companies for breaching a contractual duty of good faith and claim USD 5,000 or actual damages, whichever is higher. The good faith duty would prevent companies from discriminating in the enforcement of their terms of service or "failing to honor their promises".
Other exceptions to the current liability regime proposed by the DoJ include requiring internet platforms to act on federal court orders and civil enforcement actions brought by the federal government. This follows Trump's plan to ask the FCC to enforce Section 230.
Antitrust not covered
In addition, the DoJ wants any antitrust claims excluded from the liability protection. The justice department noted its proposals were developed as part of its investigation into competition concerns among large internet companies, which was started in July 2019.
As part of the investigation, the department held a large public workshop and expert roundtable in February, as well as "dozens" of listening sessions with industry, thought leaders, and policy makers to gain a better understanding of the uses and problems surrounding Section 230. The DoJ said it found Section 230 was "ripe for reform" after 25 years, due to technology advances and many court interpretations. These have "left online platforms unaccountable for a variety of harms flowing from content on their platforms and with virtually unfettered discretion to censor third-party content with little transparency or accountability".
The Internet Association was critical of the proposal, saying it would make it "harder, not easier" to make internet platforms safe. Before Section 230 protection, sites faced liability "for removing things like spam or profanity", the industry group noted. Changing the current system would restore the constant threat of lawsuits and hamper companies’ ability to set and enforce community guidelines and quickly respond to new challenges in online security, it said.Civil rights advocates in countries such as France and Germany have argued that this type of law could make social media sites over-zealous and start censoring or taking down more legitimate content due to fear of repercussions. The Computer & Communications Industry Association said it could also make it difficult for social media to remove disinformation from their sites.
The Justice department wants to limit liability protection to criminal content, removing references to “objectionable” content in the current law. This could limit the ability of sites to take down "disinformation by foreign intelligence operatives, racism, and misinformation about public health concerns like the COVID-19 pandemic, content that is not necessarily unlawful but is nevertheless unwanted", the CCIA said.
