Academic: Problems Created By Undermining Section 230 Can Be Solved… By Undermining Section 230?
from the say that again? dept
I remain confused at why so many people endorse Macarthur Genius award winner, Prof. Danielle Citron’s views on Section 230. Over and over again people say that her ideas for reforming Section 230 are sensible. Except that they are not. She has falsely insisted that companies have no incentives to moderate and that their incentives are to push the most extreme content. This has been debunked over and over again. If it were true, then every website would turn into 8kun. But that doesn’t happen, because most websites realize that when your website is full of garbage people, it drives away other users (including those more likely to support you or your advertisers) and it drives away advertisers.
Citron’s big idea is to put in place a duty of care or “reasonableness” standard, but we’ve explained at length why that’s the kind of idea only an academic with no experience running a website could love. It would lead to a ton of costly litigation in which companies would have to repeatedly defend their moderation practices in court. At best this would lead to companies all adopting nearly identical moderation practices to whichever company survived the litigation gauntlet first — effectively crushing any ability to experiment and innovate in the moderation market, and likely locking in Facebook as one of the few companies that can afford to handle moderation’s liability risks.
All that said, I’m even more flabbergasted by Citron’s initial response to the (now walked back) news that OnlyFans was planning to phase out sexually explicit content. Many, many people have made the connection between OnlyFans’ decision and FOSTA, the last time Section 230 was amended to add more liability to platforms. Of course, as we’ve now seen, FOSTA has had a massive human cost, is leading to some wacky vexatious civil lawsuits, and according to the GAO’s own study, has failed to live up to any of its promises.
In an article at CNN about the OnlyFans decision, Citron makes an absolutely bizarre claim, that the answer to OnlyFans deplatforming sex workers… is to put more liability on OnlyFans so that those sex workers can sue. I only wish I were kidding.
Just like social media companies, payment processors are protected by Section 230 of the Communications Act of 1934, Citron said. That’s the signature law that grants broad legal immunity to Facebook and Twitter for many of the content-moderation decisions they make ? and the law that SESTA-FOSTA amended to create an exception for sex ads.
Citron wants to see changes made to Section 230 that could expose platforms to more liability under certain circumstances. Perhaps, she said, those changes might even allow sex workers who feel their businesses have been harmed by payment processors to sue them for tortious interference.
“We’re talking about OnlyFans, where we’re seeing sex workers doing safe work. It’s from their own homes, they’re making content on their own terms,” Citron said.
So… the answer to sex workers being kicked off platforms that fear that they might face liability under FOSTA hole in Section 230, is to open up another hole in Section 230 so that those sex workers can then sue OnlyFans for tortious interference?!? Um, what?
Even just bringing up tortious interference as a cause of action is bizarre. That’s the same sort of argument that people like Laura Loomer have used to say people reporting her to Twitter engaged in “tortious interference” when Twitter kicked her off the platform. Tortious interference in the context discussed here seems like a plan for vexatious nuisance litigation and SLAPP suits, not any kind of legitimate cause of action.
But, even more to the point, how is it a solution to the consequences of adding more liability to say “let’s just pile on more liability to deal with those consequences”? It’s liability all the way down. But it’s completely disconnected from how all of this works in the real world.