The Erosion of Publisher Liability in American Law, Section 230, and the Future of Online Curation

44 Pages Posted: 16 Jul 2019

See all articles by Brent Skorup

Brent Skorup

George Mason University - Mercatus Center

Jennifer Huddleston

Mercatus Center

Multiple version iconThere are 2 versions of this paper

Date Written: July 11, 2019

Abstract

As internet businesses started to emerge in the 1990s, online content distributors were taken to court for material they published or republished. While one court found in Cubby v. CompuServe (1991) that the internet-based company was not liable, a second court trying Stratton Oakmont v. Prodigy (1995) arrived at the opposite conclusion. Congress resolved the ambiguity by enacting the Communications Decency Act of 1996, of which Section 230 established a broad liability shield for online content distributors. Two decades later, Section 230 has come under scrutiny, and many critics and lawmakers characterize it as a drastic deviation from common law that should be corrected. We take exception to that critique because the legal precedent we examine herein shows that courts had instead narrowed liability for publishers, republishers, and distributors for decades culminating in the Cubby decision. Section 230 only accelerated this process, establishing a regime that would have likely emerged in common law, albeit more gradually. Based on this legal history, we discuss the circumstances under which mandated online content takedown could be prudent and practicable and also under which continuing Section 230 protections may prove necessary.

Keywords: Section 230, intermediary liability, publication law, conduit liability, tech policy, online curation, content moderation

JEL Classification: K15

Suggested Citation

Skorup, Brent and Huddleston, Jennifer, The Erosion of Publisher Liability in American Law, Section 230, and the Future of Online Curation (July 11, 2019). Mercatus Research Paper . Available at SSRN: https://ssrn.com/abstract=3420304 or http://dx.doi.org/10.2139/ssrn.3420304

Brent Skorup (Contact Author)

George Mason University - Mercatus Center ( email )

3434 Washington Blvd., 4th Floor
Arlington, VA 22201
United States

Jennifer Huddleston

Mercatus Center ( email )

3434 Washington Blvd., 4th Floor
Arlington, VA 22201
United States

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