Social Media Immunity | Internet Business & Consumer Law

Social media immunity has been troublesome for millions using social media and being the subject of comments on the Internet. It has negatively impacted some while giving some unbridled freedom. While the Communications Decency Act, Section 230 (CDA) was implemented for a variety of reasons regarding our online life and communications, it sets certain protections for big tech social media platforms when it comes to determining what is allowed on the platforms themselves, all the while the communications are from citizen users and media outlets. The CDA is being reviewed by Congress and it may be amended to address a sundry of developing concerns. The Section states:

(c)Protection for “Good Samaritan” blocking and screening of offensive material

(1)Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2)Civil liability No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content provider. or others the technical means to restrict access to material described in paragraph (1).

Their reading of this text has allowed big tech social media platforms to exercise unrestricted discretion to restrict what is posted on its social media platform. Some would argue that such discretion has been exercised by big tech social media platforms to the detriment of freedom of speech and freedom of the press. Subpart (2) (A) stating “any action voluntarily taken in good faith,” has allowed platforms to use loose discretion to restrict speech when it was deemed as unacceptable. Such discretion is now under congressional review when freedom of speech and freedom of the press may be impinged by the discretion of the social media platforms. Is there a methodology that is being utilized to establish fairness in restricting what is allowed on the social media platform? That methodology has not been clarified and the discretion appears to be whimsical, at best.

The language that aggravates the freedom of big tech social media platforms’ discretion is the latter language referring to what could be “otherwise objectionable”. (47 USC 230 (2)(A) The term “otherwise objectionable” operates as a catch all that allows unlimited discretion to discriminate any political views or any information posted without credible criteria to set the implemented restrictive discretion. In addition to this open discretion is the immunity from liability. The level of impunity has allowed big tech social media platforms to meddle in elections and be used as weapons for and by any political purpose. This is to the detriment of necessary freedom of information for our electorate. It is also to the determinant of social freedom of speech.

While the section was also concerned with protecting Internet providers from being considered as a publisher or a speaker of the content posted on their platform, the exercise of “protection for Good Samaritan blocking and screening has brought a halt to what could be seriously considered fundamental freedoms previously enjoyed by all. With exceptions to what is considered, “obscene, lewd, lascivious, filthy, excessively violent, harassing,” content expressing opinions or reporting newsworthy information should not be restricted. But the immunity and discretionary leeway granted by 47 USC 230 has created this dilemma of loose discretion, that is now being reviewed by Congress. The results of congressional review are unpredictable with so many congressional leaders financially supported by the social media platforms.

The critical point to make in all this is that citizens have a right to information and have the right to distill the information they desire to review on their own without someone controlling what is actually available to be read and reviewed. Citizens have a right to express themselves in the free market of ideas. Openness of ideas allows us all to know the truth of issues that affect us all.

The Internet is here to stay, and our lives become more dependent on it. Whomever controls the Internet with impunity controls our lives. If that is the case, the level and extent of social media immunity exercised today jeopardizes Internet communications. Such social media immunity can place in danger our republic our fundamental freedoms by them restricting what we read and what we can say.

Section 230 serves a valuable purpose, and it should be reviewed and amended so that our Internet life is enhanced and not restricted. The Act itself is labeled with the word “Decency” and our communications should all be decent, respectful, informative, thought provoking, and enlightening for the betterment of our society and not to foster a monopoly on information nor a monopoly on how to think.