In the age of Internet wherein entire domain has been transformed into one digital platform. In such era it becomes very crucial to have legal statutes to regulate the companies which are wholly operational on digital platforms. Every day millions of people are spending their half-hearted time on digital platforms and are publishing several contents which may create a threat for the service providers of these digital platforms of cyber security, data privacy, and criminal offences. Thus it becomes very crucial to regulate certain laws which provide a legal roof to such companies from these threats. US Government had analysed these situation 30 to 35 years ago and enacted several provisions to protect these Internet based companies from the actions of third parties on which they have no control. Section 230 of Communication Decency Act (hereinafter referred to as “CDA”), 1996 in US serves a very prominent role in protecting these companies from the legal sanctions arising out of the third-party users.
WHAT IS SECTION 230 OF CDA, 1996?
Section 230 of CDA was passed in 1996 in US, provides for the Protection for private blocking and screening of offensive material. Section 230 of CDA specifically states that;
“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"
It elucidates the protection or a shield to the online intermediaries or Internet Service Providers (ISP) and companies operating on digital platforms such as YouTube, Facebook etc. from the third-party contents which may result into the violation the law or may otherwise become illegal. The objective behind the enactment of this provision was to promote the continued development of Internet and other interactive computer services in the USA by providing them with a shelter from the inappropriate contents published by the users on the internet. The CDA was passed to enhance the service provider's ability to alter, modify, delete and monitor content without treating them as publishers.
DEVELOPMENTS IN SECTION 230 OF CDA, 1996
The law of providing immunity under Section 230 of CDA came into existence due to a very famous lawsuit in the case of Stratton Oakmont, Inc. v. Prodigy Services Co 1995 WL 323710 (N.Y. Sup. Ct. 1995) wherein the New York Supreme court held the internet service providers liable for the contents and the speech of the users. The ruling of New York Supreme Court made all the ISP and Internet companies under a big threat of getting sued for the third-party published contents. Congress after analysing the repercussions of the ruling had ultimately agreed and included Section 230 in the Communications Decency Act as an immunity provision to avoid liability of contents published by the users while providing the right to remove or delete the illegal contents to the ISP and Companies operating on digital platforms.
Since the year 1996 many changes have been carried in CDA of Section 230 in view of necessary changes. In April 2018, the US Government passed a new law namely Fight Online Sex Trafficking Act (FOSTA), the law that prima facie aims to fight sex trafficking by reducing legal protections for online platforms. FOSTA resulted in a new exception to Section 230 of the CDA, which provides a strong shield to website operators from liability for user-generated contents. It states that the scope of Section 230 of CDA, does not apply to civil and criminal charges of sex trafficking, or to conduct that “promotes or facilitates prostitution.” The FOSTA has retrospective effect.
EARN IT Act, 2020
In February 2020, the US Department of Justice has proposed several reforms in Section 230 of CDA. Reforms includes the proposal to enact a new law namely, Eliminating Abusive and Rampant Neglect of interactive Technologies Act, 2020 (EARN IT, 2020). EARN IT primarily focus on the prohibition of Child Sexual Abuse Material (CSAM). The proposed Bill will create a National Commission on Online Child Sexual Exploitation Prevention. Like FASTO, EARN IT also curtails Section 230 of CDA to allow new civil and state criminal claims.
However EARN IT Act, 2020 also suffers from several negative views pertaining to its application in line with the objective of Section 230 of CDA. Time will be the essence to see the interplay between Section 230 of CDA and EARN IT Act 2020.
US GOVERNMENT'S EXEUTIVE ORDER
US Government has pulled their shocks and is in action to revisit Section 230 of CDA. US Government is in line to issue an executive order targeting the shield of social-media companies, in other words, the US government is targeting on the legal backbone of the internet i.e. Section 230 of CDA. The need to revisit Section 230 of CDA is occasioned from the excessive legal protection provided by Section 230 of CDA to the ISP and Internet companies/ Social Media companies.
Officials of US Government are of the views that shelter provided by the Section 230 of CDA is becoming a legal weapon for these companies to escape themselves from their responsibilities of their actions. This need has their roots from the contents getting published on the social media sites of the officials of US Government, which is unacceptable by the US Government. This executive order aims to narrow down the protections available from liability over the content posted on social sites. The executive order is designed to pressurise the regulators, including the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC), to draft and issue new rules that would curtail the legal protection/ immunity provided by Section 230 of CDA to the companies.
Possible Impact of Executive Order
Legal practitioners of US states that; it would be unfair on the part of ISP and Social Media companies to take away the most required immunity from them without providing them with a fair chance of hearing. The execute order may also be challenged before the US courts in light of First Amendment
Social Media companies and ISP would be in big distress in respect of regulating the contents on their digital platforms and will be prone to civil & criminal liability for the acts of users. Reports state that the implementation of the executive order will direct impact on the growth of Social Media companies and they might have to find another country which can become Internet heaven for these companies.
However, there are several questions raised on the validity of legal authority of issuance of the executive order by the of US Government, curtailing the immunity of Section 230 of CDA available to the ISP, Social Media companies and other digital platforms like Twitter.
Section 230 of CDA has played a dual role of Sword & Shield; it provides a shield to companies from the liability of the contents published by users on the internet and digital platforms and also acts as a sword to companies by providing the powers to moderate and delete the contents from the internet if found inappropriate.
It's quite evident that the US is Internet heaven and a hub for maximum Internet-based and Social Media companies to flourish since inception. The prompt action by the US Government to curtail the immunity provided in Section 230 of CDA will put all these companies into dark shallows with lots of civil and criminal liabilities arising from the actions of users.
If we analyse the situation in India, there is no specific law which provides a legal roof to the ISP and Social Media companies from the liability of the contents published by the users, however, there are guidelines issued by Indian Government to held Social media companies such as Facebook, Twitter, YouTube etc. liable for the advertisement on their platforms if any illegal contents are hosted by such Social Media companies and it also provides the immune to such companies on the user based contents.
Originally published 07 July, 2020
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