Twenty Years of Intermediary Immunity: The US Experience

Abstract

By Jeff Kosseff. Policymakers worldwide have long debated how to maintain free expression on the Internet while minimising defamation and other harmful online speech. Key to these debates has been intermediary liability: whether online platforms should be held legally responsible for user-generated content. To inform this continued debate, this article examines the US experience with relatively broad intermediary liability immunity. Enacted two decades ago, Section 230 of the Communications Decency Act of 1996 provides robust immunity to websites, Internet service providers, social media providers, and other online platforms for legal claims arising from user content. This article examines the scope of the immunity that Section 230 provides to US platforms and examines the primary criticisms of this approach. This article analyses court opinions involving Section 230, and examines the content moderation policies and practices of the leading US online platforms. The article concludes that Section 230 has fostered the growth of social media, user reviews, and other online services that rely primarily on user-generated content. Critics of Section 230 raise valid concerns that the broad immunity often prevents lawsuits against online platforms. However, my research concludes that many of the largest US intermediaries voluntarily block objectionable and harmful content due to consumer and market demands.