Members of Congress are fond of wrongly calling Section 230 (47 U.S.C. § 230) a “big tech company” immunity, implying that it doesn’t protect anyone else. And they are not alone in this mistake. We frequently hear the same mischaracterization from friends in academia and legacy news media.
The characterization is wrong because Section 230’s protections have been enjoyed and employed by a wide variety of Internet users. The law’s protections are in no way limited to “tech companies,” of any size.
Section 230, by its language, provides immunity to any “provider or user of an interactive computer service” when that “provider or user” republishes content created by someone or something else, protecting both decisions to moderate it and those to transmit it without moderation. “User,” in particular, has been interpreted broadly to apply “simply to anyone using an interactive computer service.” This includes anyone who maintains a website, posts to message boards or newsgroups, or anyone who forwards email. A user can be an individual, a nonprofit organization, a university, a small brick-and-mortar business, or, yes, a “tech company.”
The "news media entity-social media platform" dynamic is a helpful example here. Legacy news media companies often complain that Section 230 gives online social media platforms extra legal protections and thus an unfair advantage. But Section 230 makes no distinction between news entities and social media platforms. Instead, the only distinction the law creates is between online and offline publication, a recognition of the inherent differences in scale between the two modes of publication. And plenty, if not the vast majority, of news media entities publish online—either solely or in tandem with their print editions. When a news media entity publishes online, it gets the exact same Section 230 immunity from liability based on publishing someone else’s content that a social media platform gets.
So, for example, news media entities have Section 230 immunity from any liability that arises from comments that readers post to articles, wire service stories, or advertisements. And they have been highly successful when they do raise Section 230 as a defense. As Prof. Eric Goldman has catalogued, “One of the safest bets in Section 230 jurisprudence is that a traditional media publisher won’t be liable for user comments to its website.” Conversely, a big tech company is not protected by Section 230 when it publishes someone else’s content in print. So, for example, Airbnb can’t use Section 230 to shield it from liability based on user reviews or letters to the editor that it might publish in its new print magazine.
EFF’s own work on Section 230 reflects the wide variety of Internet users who are protected from liability by the law. In our current challenge to FOSTA, our clients are the Internet Archive, nonprofit human rights organizations and individuals who maintain websites, and an individual who wishes to advertise on Craigslist. We previously represented the Internet Archive in two other cases challenging restrictions to Section 230’s protections.
Of course, the ultimate beneficiaries of Section 230 are all of us who want online intermediaries to exist so that we can post things online without having to code it ourselves, and so that we can read and watch content that others create. Intermediaries, be they social media platforms, news sites, or email forwarders, aren’t protected by Section 230 for their own sake. They’re protected so that they can be available to all of us who rely on them.
To be sure, “tech companies” that provide a platform for the speech of others rely on Section 230 immunity to a great extent. But it’s a mistake to say that they are the only or even the majority of those who do so, or that only or mostly they assert it as a defense to liability in court.
