The Internet Immunity Escape Hatch

51 Pages Posted: 3 Jun 2022 Last revised: 13 Jul 2022

See all articles by Gregory M. Dickinson

Gregory M. Dickinson

St. Thomas University - School of Law; Stanford Law School

Date Written: May 4, 2022

Abstract

Internet immunity doctrine is broken, and Congress is helpless. Under Section 230 of the Communications Decency Act of 1996, online entities are absolutely immune from lawsuits related to content authored by third parties. The law has been essential to the internet’s development over the last twenty years, but it has not kept pace with the times and is now deeply flawed. Democrats demand accountability for online misinformation. Republicans decry politically motivated censorship. And all have come together to criticize Section 230’s protection of bad-actor websites. The law’s defects have put it at the center of public debate, with more than two dozen bills introduced in Congress in the last year alone.

Despite widespread agreement on basic principles, however, legislative action is unlikely. Congress is deadlocked, unable to overcome political polarization and keep pace with technological change. Rather than add to the sizeable literature proposing changes to the law, this Article asks a different question—how to achieve meaningful reform despite a decades-old statute and a Congress unable to act. Even without fresh legislation, reform is possible via an unlikely source: the Section 230 internet immunity statute that is already on the books. Because of its extreme breadth, Section 230 grants significant interpretive authority to the state and federal courts charged with applying the statute. This Article shows how, without any change to the statute, courts could press forward with the very reforms on which Congress has been unable to act.

Keywords: internet law, cyberlaw, Section 230

JEL Classification: K13, K2, K42, O3

Suggested Citation

Dickinson, Gregory M., The Internet Immunity Escape Hatch (May 4, 2022). 47 BYU L. Rev. 1435 (2022), Available at SSRN: https://ssrn.com/abstract=4125189

Gregory M. Dickinson (Contact Author)

St. Thomas University - School of Law ( email )

16401 N.W. 37th Ave.
Miami, FL 33054
United States

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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