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Journal of Technology Law & Policy

Document Type

Article

Abstract

Nemet Chevrolet is typical of many claims that are dismissed under Section 230, which Congress passed in 1996. Plaintiffs seek to hold websites accountable for damaging content posted by third parties, and courts typically deny these claims under Section 230. Many commentators have argued that such opinions are reasons to limit or repeal Section 230’s immunity for websites. The critics argue that Congress never contemplated such broad immunity for websites from defamation and other torts. But this Article argues that such changes are imprudent and inconsistent with Congress’s intentions and First Amendment principles. Section 230 has allowed the Internet to flourish as an open medium in which all consumers—rather than just the websites’ employees—provide content. If websites were not immune for third-party content, the Internet likely would not be as open as it is today.

This Article does not trivialize the legitimate concern about Section 230. With the vast amount of information available on the Internet, it is easy for an anonymous comment to ruin an individual’s reputation who understandably wants to recover damages. But the fairest method of recovery is to sue the person who posted the damaging content, not the passive intermediary that played little or no role in the creation.

Rather than propose sweeping changes to Section 230 or alternative interpretations of the statute, this Article argues that judicial interpretations of Section 230 are correct as matters of statutory law and policy. The general reasons for Section 230’s broad immunity are supported by constitutional decisions that limit liability for speech in other contexts. Although Internet service providers and websites have not faced significant tort liability, they have adopted many of the content protection measures that Congress envisioned when it passed the unprecedented statutory immunity.

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