February 17, 2020

The Erosion of Publisher Liability in American Law, Section 230, and the Future of Online Curation

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As internet businesses started to emerge in the 1990s, online content distributors were taken to court for material they published or republished. While the court in Cubby v. CompuServe found that the internet-based company was not liable, another court arrived at the opposite conclusion in Stratton Oakmont v. Prodigy. Congress resolved the ambiguity by enacting the Communications Decency Act of 1996, of which § 230 established a broad liability shield for online content distributors. Two decades later, § 230 has come under scrutiny, and many critics and lawmakers characterize it as a drastic deviation from common law that requires correction. However, an examination of the relevant case law reveals that courts had instead narrowed liability for publishers, republishers, and distributors for decades—eventually culminating in the Cubby decision. Section 230, we suggest, codified this process by establishing a publisher liability regime that likely would have emerged in common law. Based on this legal history, we discuss the circumstances under which mandated online content takedown could be prudent and practicable as well as those under which continuing § 230 protections may prove necessary.

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