The Erosion of Publisher Liability in American Law, Section 230, and the Future of Online Curation
44 Pages Posted: 16 Jul 2019
Date Written: July 11, 2019
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: Suggested Citation