Citation[]
Valerie C. Brannon, Liability for Content Hosts: An Overview of the Communication Decency Act's Section 230 (CRS Legal Sidebar LSB10309) (June 6, 2019) (full-text).
Overview[]
Section 230 of the Communications Decency Act of 1996 broadly protects online service providers like social media companies from being held liable for transmitting or taking down user-generated content. In part because of this broad immunity, social media platforms and other online content hosts have largely operated without outside regulation, resulting in a mostly self-policing industry. However, while the immunity created by Section 230 is significant, it is not absolute. For example, courts have said that if a service provider "passively displays content that is created entirely by third parties," Section 230 immunity will apply; but if the service provider helps to develop the problematic content, it may be subject to liability.
Commentators and regulators have questioned in recent years whether Section 230 goes too far in immunizing service providers. In 2018, Congress created a new exception to Section 230 in the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, commonly known as FOSTA. Post-FOSTA, Section 230 immunity will not apply to bar claims alleging violations of certain sex trafficking laws. Some have argued that Congress should further narrow Section 230 immunity — or even repeal it entirely.
This Sidebar provides background information on Section 230, reviewing its history, text, and interpretation in the courts.