The courts have ruled that Section 230 allows, but does not require, hosts to establish (and implement) acceptable use standards without risking liability. But publishing policies is still a good idea, as people often appreciate advice on what is acceptable and what is not. Not everyone believes in the need for reform. Some advocates of Section 230 argue that it allows for innovation in its current form, as startups and other small businesses may not have sufficient resources to protect their websites with the same care as, say, Google. But the standard of due diligence would address this issue, because what counts as « adequate » protection for a billion-dollar company will, of course, be very different from what is considered reasonable for a small startup. Another criticism of Article 230 reform is that it will stifle free speech. But that`s simply not true: all of the due diligence proposals on the table today are about content that isn`t protected by the First Amendment. The immunity provided for in Article 230 is not unlimited. In particular, the Act excludes criminal liability of the Confederation (Art. 230(e)(1)), infringements of electronic privacy (Art. 230(e)(4)) and intellectual property rights (Art.
230(e)(2)). [5] There is also no immunity from state laws consistent with 230(e)(3), although state criminal laws in cases such as Backpage.com, LLC v. McKenna[6] and Voicenet Communications, Inc. v. Corbett[7] (agrees that « the clear language of the CDA » immunity from conflicting state criminal laws »). What is meant by « publication » in the context of the CDA is defined quite narrowly by the courts. The Ninth Judicial District noted that « publication involves reviewing, editing, and deciding whether to publish or remove third-party content. » [8] Therefore, CDA does not grant immunity to content created or developed by an interactive service provider itself. [9] [10] CDA`s immunity also does not preclude an action based on a stay of promissory notes. [11] [12] Since mid-2016, courts have issued conflicting decisions on the scope of the section 230(e)(2) exclusion of intellectual property.
For example, in Perfect 10, Inc. v. CCBill, LLC,[13] the Court of Appeal of 9. District that the Intellectual Property Act exception applies only to federal intellectual property claims such as copyright infringement, trademark infringement, and patents, and overturned a district court that ruled that the exception applies to state advertising claims. [14] The 9th Circuit`s decision in Perfect 10 contradicts the findings of other courts, including Doe v. Friendfinder. In particular, the Friendfinder court discussed and rejected the lower court`s interpretation of « intellectual property rights » in CCBill, ruling that immunity does not reach the state`s right to advertising claims. [15] As part of the presidential decree to prevent online censorship, and following the Ministry`s long-standing review of Section 230, the Department compiled the following set of Section 230 reform legislation.
The proposal focuses on the two main issues identified by victims, businesses and other stakeholders in discussions and meetings held by the ministry to discuss the issue. First, it addresses unclear and inconsistent moderation practices that limit freedom of expression and go beyond the text of the existing law. Second, there is the dissemination of illegal and harmful content online, which leaves no civil recourse to victims. Overall, the ministry`s legislative package provides a clear path to modernize section 230 to promote a safer and more open internet. In a world without Article 230 protection, online services should be aware of every post on their websites and make 100% the right decision to moderate content to avoid liability for their users` language.