How Should Online Content Moderation Be Handled?

There’s been a lot of discussion about censorship and free expression on the internet in the wake of the recent Joe Rogan situation. We’ve previously covered the laws governing how internet companies treat user-generated content, but decided to revisit the topic in light of recent events.

📜 The basics: The First Amendment protects individuals from government censorship. Social media platforms are private companies, so they can censor what people post on their websites as they see fit.

• But given their influential role in public discourse, many people – including some social media executives – are calling on Congress to update their regulations for online content moderation.

🇺🇸 How does it work right now?… In the US, social media companies and other online platforms are governed by a law known as Section 230 of the Communications Decency Act, which has two key subsections regarding user-generated posts:

1. Section 230(c)(1) gives online platforms legal immunity from content posted on their sites by third parties.
2. Section 230(c)(2) allows online platforms to police their sites for harmful content, but doesn’t require that they remove anything, and protects them from liability if they choose not to.

That second clause didn’t always exist – Congress added it in response to a 1995 court ruling that said platforms policing any user-generated content should be considered legally liable for all of the content posted to its site.

• Lawmakers believed the judge’s ruling would make platforms unwilling to police their sites for harmful content, so they added Section 230(c)(2) to encourage moderation.
• In 2018, Congress amended the law to remove platforms’ legal immunity from third-party content when it comes to sex-trafficking.

🏛️ What are some alternatives?... In recent years, Congress and the executive branch have proposed dozens of different bills that would alter the scope of Section 230.

• Some lawmakers are in favor of limiting platforms’ immunity from user-generated posts to encourage them to take down more undesirable content.
• Others are in favor of limiting platforms’ immunity for certain types of moderation decisions to encourage them to host more content.

+From the business world: In testimony before Congress last year, Facebook CEO Mark Zuckerberg argued in favor of amending Section 230 to require platforms to have “adequate systems” in place to remove illegal content.

• Other social media CEOs said Congress should keep the law as is to avoid unintended consequences in harming free expression.