Breaking Section 230’s Intermediary Liability Protections Won't Fix Harassment

As we've noted before, online harassment is a pressing problem—and a problem that, thankfully and finally, many are currently working on together to mitigate and resolve. Part of the long road to creating effective tools and policies to help users combat harassment is drawing attention to just how bad it can be, and using that spotlight to propose fixes that might work for everyone affected.

But not all of the solutions now being considered will work. In fact, some of them will not only fail to fix harassment, but they will actually place drastic limitations on the abilities of ordinary users to work together, using the Net, to build and agitate real, collective solutions.

One proposal raised recently by Arthur Chu falls into this latter category. Chu suggests that intermediaries—anyone who runs an online server that acts as a host for users' speech—should be made jointly responsible for the content of that speech. His theory is that if you make a middle-man—such as an ISP like Facebook, Twitter, or YouTube, the host of a discussion forum, or a blog author—legally responsible for what their users' or commenters say, then they will have a strong incentive to make sure that their users don't harass others using their platform.

In the United States, the primary protection against such broad intermediary liability is CDA 230—a statute which Chu thinks should be dismantled. As courts in the United States have recognized, the immunity granted under CDA 230 actually encourages service providers and other online intermediaries to self-regulate—i.e., to police and monitor third-party content posted through their services. Prior to the enactment of CDA 230, a service provider could be held liable if it tried to self-regulate but did so unsuccessfully—a framework which actively discouraged intermediaries from regulating potentially objectionable content on their sites.

CDA 230 is currently one of the most valuable tools for protecting freedom of expression and innovation on the Internet. Countries around the world have similar protections for online intermediaries, and, through initiatives including the Manila Principles, human rights groups around the world have campaigned in favor of such protections. Such groups include Article 19, the Association for Progressive Communications, the Committee to Protect Journalists, Change.org and Free Press, as well as national human rights organizations from various counties, ranging from Egypt and Pakistan to Australia and Canada.

And there is good reason for the law to protect online intermediaries from liability based on what other people say online. The primary reason so many around the world have fought for, and continue to fight for, intermediary liability protections is straightforward. If you're speaking up for an unpopular truth against powerful interests, one of the best ways they have to silence your objections is to legally intimidate intermediaries. Intermediaries' interests differ from their users, and while many hosts of Internet content make strong statements in favor of their users -- in defense of their ability to speak freely or feel safe online -- given the choice between defending the users and fighting an expensive legal battle (even if there is a good chance they’d win), it's clear which route many will take. Some intermediaries may not have the resources to even consider going to court. In other words, getting rid of CDA 230 liability protection acts as a de facto tax on intermediaries that wish to protect the free expression of their users.

But it's worse than that. An intermediary fearful of liability based on the actions of its users may also proactively modify its site to remove the possibility of a lawsuit altogether. Intermediaries have a powerful ability to control what conversations take place on their networks. In a world where litigation is an ever-present threat, intermediaries will set up environments where contentious conversations never happen in the first place.

For those arguing against CDA 230, that's the whole point of weakening its protections. They argue that intermediaries are best suited to filter and guide online