WASHINGTON, March 9, 2023 – Section 230 as it is written shuts down the conversation about the first amendment, claimed experts in a debate at Broadband Breakfast’s Big Tech & Speech Summit Thursday.  

Matthew Bergman, founder of the Social Media Victims Law Center, suggested that section 230 avoids discussion on the appropriate weighing of costs and benefits that exist in allowing big tech companies litigation immunity in moderation decisions on their platforms. 

We need to talk about what level of the first amendment is necessary in a new world of technology, said Bergman. This discussion happens primarily in an open litigation process, he said, which is not now available for those that are caused harm by these products. 

Photo of Ron Yokubaitis of Texas.net, Ashley Johnson of Information Technology and Innovation Foundation, Emma Llanso of Center for Democracy and Technology, Matthew Bergman of Social Media Victims Law Center, and Chris Marchese of Netchoice (left to right)

All companies must have reasonable care, Bergman argued. Opening litigation doesn’t mean that all claims are necessarily viable, only that the process should work itself out in the courts of law, he said. 

Eliminating section 230 could lead to online services being “over correct” in moderating speech which could lead to suffocating social reform movements organized on those platforms, argued Ashley Johnson of research institution, Information Technology and Innovation Foundation. 

Furthermore, the burden of litigation would fall disproportionally on the companies that have fewer resources to defend themselves, she continued. 

Bergman responded, “if a social media platform is facing a lot of lawsuits because there are a lot of kids who have been hurt through the negligent design of that platform, why is that a bad thing?” People who are injured have the right by law to seek redress against the entity that caused that injury, Bergman said. 

Emma Llanso of the Center for Democracy and Technology suggested that platforms would change the way they fundamentally operate to avoid threat of litigation if section 230 were reformed or abolished, which could threaten freedom of speech for its users. 

It is necessary for the protection of the first amendment that the internet consists of many platforms with different content moderation policies to ensure that all people have a voice, she said. 

To this, Bergman argued that there is a distinction between algorithms that suggest content that users do not want to see – even that content that exists unbeknownst to the seeker of that information – and ensuring speech is not censored.  

It is a question concerning the faulty design of a product and protecting speech, and courts are where this balancing act should take place, said Bergman. 

This comes days after law professionals urged Congress to amend the statue to specify that it applies only to free speech, rather than the negligible design of product features that promote harmful speech. The discussion followed a Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube.   

To watch the full videos join the Broadband Breakfast Club below. We are currently offering a Free 30-Day Trial: No credit card required!

WASHINGTON, March 9, 2023 – A member of Meta’s oversight board, John Samples, suggested that out-of-court dispute institutions for content moderation may become the preferred method of settlement in Broadband Breakfast’s Big Tech & Speech Summit Thursday. 

Meta’s oversight board was created by the company to support free speech by upholding or reversing Facebook’s content moderation decisions. It works independently of the company and hosts 40 members around the world.  

The European Union’s Digital Services Act, which came into force in November of 2022, requires platforms to remove illegal content and ensure that users can contest removal of their content. It clarifies that platforms are only liable for users’ unlawful behavior if they are aware of it and fail to remove it. 

The Act specifies illegal speech to include speech that does harm to the electoral system, hate speech, and speech that harms fundamental rights. The appeals process allows citizens to go directly to the company, the national courts, or out-of-court dispute resolution institutions, none of which currently exist in Europe. 

According to Samples, the Act opens the way for private organizations like the oversight board to play a part in moderation disputes. “Meta has a tremendous advantage here as a first mover,” said Samples, “and the model of the oversight board may well spread to Europe and perhaps other places.” 

The United States may adopt European processes in the future as it takes the lead in moderating big tech, claimed Samples. “It would largely be a private system,” he said, and could unify and centralize social media moderation across platforms and around the world.  

The private option of self-regulation has worked well, said Samples. “It may well be expanding throughout much of the world. If it goes to Europe, it could go throughout.” 

Currently, of the media that Meta reviews for moderation, only one percent is restricted, either by taking down the content or reducing the size of the audience exposed to it, said Samples. The oversight board primarily rules against Meta’s decisions and accepts comments from independent interests.  

To watch the full videos join the Broadband Breakfast Club below. We are currently offering a Free 30-Day Trial: No credit card required!

WASHINGTON, March 8, 2023 – Law professionals at a Senate Subcommittee on Privacy, Technology and the Law hearing on Wednesday urged Congress to amend Section 230 to specify that it applies only to free speech, rather than the promotion of misinformation.

Section 230 protects platforms from being treated as a publisher or speaker of information originating from a third party, thus shielding it from liability for the posts of the latter. Mary Anne Franks, professor of law at the University of Miami School of Law, argued that there is a difference between protecting free speech and protecting information and the harmful dissemination of that information.

Hany Farid, professor at University of California, Berkley, argued that there should be a distinction between a negligently designed product feature and a core component to the platform’s business. For example, YouTube’s video recommendations is a product feature rather than an essential function as it is designed solely to maximize advertising revenue by keeping users on the platform, he said.

YouTube claims that the algorithm to recommend videos is unable to distinguish between two different videos. This, argued Farid, should be considered a negligently designed feature as YouTube knew or should have reasonably known that the feature could lead to harm.

Section 230, said Farid, was written to immunize tech companies from defamation litigation, not to immunize tech companies from any wrongdoing, including negligible design of its features.

“At a minimum,” said Franks, returning the statue to its original intention “would require amending the statute to make clear that the law’s protections only apply to speech and to make clear that platforms that knowingly promote harmful content are ineligible for immunity.”

In an State of the Net conference earlier this month, Frank emphasized the “good Samaritan” aspect of the law, claiming that it is supposed to “provide incentives at platforms to actually do the right thing.” Instead, the law does not incentivize platforms to moderate its content, she argued.

Jennifer Bennett of national litigation boutique Gupta Wessler suggested that Congress uphold what is known as the Henderson framework, which would hold a company liable if it materially contributes to what makes content unlawful, including the recommendation and dissemination of the content.

Unfortunately, lamented Eric Schnapper, professor of law at University of Washington School of Law, Section 230 has barred the right of Americans to get redress if they’ve been harmed by big tech. “Absolute immunity breeds absolute irresponsibility,” he said.

Senator Richard Blumenthal, R-Connecticut, warned tech companies that “reform is coming” at the onset of the hearing.

This comes weeks after the Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube. The case saw industry dissention on whether section 230 protects algorithmic recommendations. Justice Brett Kavanaugh claimed that YouTube forfeited its protection by using recommendation algorithms but was overturned in the court ruling.