Developments in Intermediary Liability
The Business Lawyer 76(1), 339 (2021).
10 Pages Posted: 23 Mar 2021
Date Written: January 2021
The Communications Decency Act (“CDA”) was crafted at the dawn of the Internet Age to provide immunity for any “interactive computer service” (“ICS”) from liability based on information provided by third parties. Colloquially known by its section number in Title 47 of the U.S. Code, Section 230 shielded the nascent industry by greatly limiting federal claims against an ICS and preempting conflicting state claims. Section 230’s immunity clause has generally been interpreted by courts to cover virtually all forms of third-party content published by platforms of all types (e.g., Facebook, Airbnb, Tinder, and Amazon), even if the information is patently inaccurate, illegal, or intended to deceive.
The cases included in this survey relate to a wide array of business law topics, including hosting a marketplace for products designed to inflict harm or for recruitment of—and communications by—like-minded individuals (Part II.A), liability for marking a competitor’s products as a security risk (Part II.B), loss of immunity due to a role in compiling information (Part II.C), removing content or users from a platform (Part II.D), and the Snapchat speed filter (Part II.E). The future of Section 230 is uncertain due to controversy surrounding the increased moderation by major platforms, including warning labels, user bans, and content removal, which prompted an executive order from the President encouraging increased scrutiny of Section 230’s application and multiple public statements calling for the repeal or amendment of the law itself (Part III). Given the wide-ranging application of Section 230’s immunity clause to companies that constitute a significant portion of the economy, all business lawyers should monitor its current applications, the impact of the recent executive order, and any future statutory amendments or new administrative rules.
Keywords: Section 230, ISP immunity, cyberlaw, CDA, liability, internet law
JEL Classification: K22, K23, K20, K13
Suggested Citation: Suggested Citation