A new executive order from President Trump may affect every blog, recipe site, review site, ecommerce site, and online forum that publishes user-generated content.
The executive order specifically mentions Facebook and Twitter.
But the scope of the order includes all websites that publish user-generated content that is moderated.
According to the text published by the White House:
“Sec. 7. Definition. For purposes of this order, the term “online platform” means any website or application that allows users to create and share content or engage in social networking, or any general search engine.”
I asked Jeff Ferguson, Adjunct Professor of Digital Marketing at UCLA and partner at Amplitude Digital (@AmplitudeAgency) about the scope of that executive order and he offered this opinion:
“The definition of an “online platform” as defined by the president’s executive order is very broad and can encompass a blog, an online forum, or even a recipe site that allows users to share recipes, in addition to the common examples of ‘social media’ that usually come to mind.”
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I agree with Jeff that the phrasing is very broad:
“…any website… that allows users to create and share content…”
Common Decency Act Section 230 (CDA 230)
The purpose of CDA 230 was to make it safe for anyone to create a site that allows users to create and share content without worrying about getting sued for content that was published by a user.
This freedom from litigation allowed the Internet to grow and fostered free speech.
Most importantly, sites were free to moderate their users and not be classified as publishers of that content, a designation could open a site up to lawsuits.
According to the Electronic Frontier Foundation (EFF):
“CDA 230 also offers its legal shield to bloggers who act as intermediaries by hosting comments on their blogs. Under the law, bloggers are not liable for comments left by readers, the work of guest bloggers, tips sent via email, or information received through RSS feeds. This legal protection can still hold even if a blogger is aware of the objectionable content or makes editorial judgments.”
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According to the executive order, a publisher who restricts “access to content that it considers to be ‘obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable…” might be subject to having their legal immunity lifted if they fail to provide adequate notice, reasoned explanation, or an opportunity for a hearing.
Here’s the specific clause from the executive order:
“(ii) the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be “taken in good faith” if they are:
…taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard;”
The definition of what is “objectionable” can vary from site to site.
Many online forums ban discussions of religion and politics on the basis that they are “objectionable” because those kinds of comments lead to divisions among the forum members.
And what about a religious forum?
Does this mean that “objectionable” comments promoting an alternative religion cannot be restricted without giving the commenter adequate notice, a reasoned explanation or a meaningful opportunity to be heard?
The EFF writes:
“Section 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions. As the Fourth Circuit noted:
Lawsuits seeking to hold a service liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred.
The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. . . . Section 230 was enacted, in part, to maintain the robust nature of Internet communication.”
Rather than increase freedom of speech, this executive order might do the opposite by removing the traditional immunity from litigation granted to online forums, bloggers, and many other kinds of websites with user-generated content.
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Electronic Frontier Foundation:
Exercise of Editorial Functions
Section 230 of the Communications Decency Act