The intermediary immunity created by Section 230 probably protects claims based on the non-legal harms of hate speech and misinformation as well as a European-style proportionality system of content moderation better than a more “legalized” intermediary liability regime would. Contrasting the existing non-copyright content moderation systems with empirical research on the effects of the Digital Millennium Copyright Act (DMCA) shows that a comprehensive regulation of content moderation would incentivize the moderation of defamation and negligence claims at the expense of these important non-legal claims and incentivize a homogenous, categorical approach to content moderation. Furthermore, empirical research on the effects of SESTA-FOSTA and online secondary copyright liability outside the DMCA’s safe harbor shows the effects of a non-comprehensive solution would be even worse: incentivizing widespread automation and crude blocking with negligible positive effects. Instead, policymakers should focus on narrow changes to Section 230, remedies that punish systemic violations, and non-tort solutions.
The Hydraulics of Intermediary Liability Regulation,
70 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol70/iss2/6