Section 230: An Introduction for Antitrust & Consumer Protection Practitioners

Abstract

This chapter focuses on complaints about “content moderation” because ICS providers are far more likely to be subject to unfair competition and consumer protection claims (meritorious or otherwise) for choosing not to carry, or promote, some third party’s content. The term is used throughout to include not only blocking or removing third party content or those who post it, but also limiting the visibility of that content (e.g., in “Safe Mode”), making it ineligible for amplification through advertising (even if the content remains up), or making it ineligible for “monetization” (i.e., having advertising appear next to it).

We begin by providing an introduction to this statute, its origins, and its application by the courts since 1996. We then explain the interaction between Section 230 and the antitrust and consumer-protection laws. We conclude by discussing current proposals to amend or reinterpret Section 230 aimed specifically at making it easier to bring antitrust and consumer protection suits for content moderation decisions.