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

Abstract

As internet businesses started to emerge in the 1990s, online content distributors were taken to court for defamatory 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. However, an examination of the relevant caselaw reveals that courts had instead narrowed liability for publishers, republishers, and distributors for decades culminating in the Cubby decision. Section 230, we suggest, codified this process, establishing a publisher liability regime that would have likely emerged in common law. 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.