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By Purple Fox Legal

May 8, 2023

As the digital landscape continues to evolve, it is crucial for creatives and entrepreneurs to stay informed about legal challenges that may impact their online presence. A significant area of interest is Section 230 of the Communications Decency Act. This critical law has long served as a protective layer for online platforms, shielding them from liability for user-generated content (UGC) and enabling small businesses to grow digitally. 

However, recent Supreme Court hearings and potential changes to the law may disrupt the way small businesses navigate their online activities. 

In this article, we’ll delve into Section 230, examine the implications of the recent SCOTUS cases, and offer practical advice to help you safeguard your small business amidst the ongoing debate. 

A Deep Dive into Section 230 and Its History

In 1996, Congress originally enacted the Communications Decency Act (CDA) as part of the Telecommunications Act to protect minors from accessing sexually explicit materials online. 

Section 230 of the CDA, often considered the most important law protecting internet speech, states that providers or users of interactive computer services shall not be treated as publishers or speakers of information others provide. This federal law supersedes any inconsistent state or local laws.

Section 230 was introduced to safeguard internet platforms and encourage innovation in the beginning of the internet age. The law distinguishes between platforms and content creators, granting UGC platforms, such as social media companies, legal immunity for content created and posted by their users. However, certain exceptions exist for copyright violations, sex work-related material, and violations of federal criminal law.

Two key subsections of Section 230 govern user-generated posts. Section 230(c)(1) protects platforms from legal liability for harmful content posted by third parties. In contrast, Section 230(c)(2) allows platforms to police their sites for harmful content without mandating removal and shields them from liability if they choose not to.

There is a growing consensus that Section 230 needs updating. Even Facebook CEO Mark Zuckerberg acknowledges the need for more precise guidance from elected officials. 

Lawmakers on both sides of the aisle have called for revoking or amending Section 230. In 2021, the Texas Supreme Court ruled that Facebook was not shielded by Section 230 for sex-trafficking recruitment on its platform.

Critics argue that Section 230, initially designed to help fledgling internet companies grow, needs to be updated due to these businesses’ enormous growth and power. 

Controversy surrounds whether this law from the internet’s early days should be reexamined or repealed altogether. Despite bipartisan agreement on reforming Section 230, smaller platforms and businesses have opposed removing protections. 

Current SCOTUS Cases Shaping the Section 230 Debate

The U.S. Supreme Court recently heard a case, Gonzalez v. Google, which questions whether technology companies can be held accountable for the content posted on their platforms. The case revolves around the family of an American college student killed in a terrorist attack in Paris and whether they can sue Google, the parent company of YouTube, for allegedly allowing extremists to spread their message through the platform’s recommendation algorithm. While the justices seemed hesitant to side with the family, they also appeared skeptical of Google’s assertion that the law provides it and other companies with complete immunity from lawsuits.

Another case, Twitter v. Taamneh, also centers on liability, albeit for different reasons. This case concerns the family members of a man killed in an Istanbul nightclub attack, for which the Islamic State (IS) group took responsibility. The family claims that Twitter, Facebook, and YouTube’s parent company, Google, facilitated the growth of IS by suggesting extremist content through their algorithms. The platforms counter that they are not liable, as they did not knowingly or substantially contribute to the attack. 

The decisions in these cases can radically alter the internet as we know it. Dismantling Section 230 will not be a simple task, but online speech could undergo a significant transformation if it occurs. The Supreme Court’s decision to hear these cases presents an opportunity to revise, redefine, or even abolish the foundational law of the internet, which would fundamentally change its nature. However, it is not guaranteed that the court will rule in favor of the plaintiffs. The verdicts are anticipated to be announced in June 2023.

Potential Outcomes and Impacts on Small Businesses

According to the Harvard Business Review, one suggestion from a 2017 Fordham Law Review article proposes revising Section 230 only to protect platforms that take reasonable steps to address known unlawful uses of their services that cause significant harm to others.

The duty-of-care standard could address concerns about hindering innovation and free speech, as it would only target content not protected by the First Amendment. Critics argue that Section 230 reform may negatively impact startups and small businesses that need more resources to protect their sites at the same level as larger companies like Google. However, the duty-of-care standard would address these issues, ensuring that responsible businesses are not unfairly burdened by broader regulatory intervention.

Many small businesses and online creators benefit from Section 230’s legal protections, such as those related to online customer reviews and search result optimization. The U.S. Chamber of Commerce highlights that small businesses utilizing technology platforms are more likely to experience growth in sales, profits, and employment. However, changes to Section 230 could result in reduced visibility for small businesses and increased costs for content posting. 

Changes made by anticipated Supreme Court decisions or Congress may also result in UGC platforms over-policing content, increasing the costs for small businesses to create content that complies with each platform’s policies.

Bloggers, who can be both providers and users of interactive computer services, may also be affected by potential changes to Section 230. 

A repeal of the law could lead to a wave of litigation, increased caution among internet sites, and restrictions on UGC to avoid liability. Compliance could become more challenging and expensive, potentially forcing smaller businesses to alter their business model, shut down, or merge with larger entities capable of handling stricter content regulation.

The future of Section 230 is uncertain, but potential changes could significantly impact small businesses and the broader Internet landscape. Adopting a duty-of-care standard could address concerns about innovation and free speech while ensuring responsible companies are not unfairly burdened by extensive regulation. 

Shielding Your Business with Proactive Strategies

As the future of Section 230 remains uncertain, small businesses must be proactive in protecting themselves. Here are some steps you can take to safeguard your business and prepare for potential changes:

1. Stay Informed: Keep up to date with the latest news regarding Section 230 and any legal developments that may impact your business. Knowledge is power, and being informed will help you make better decisions for your company.

2. Legal Consultation: Seek advice from a lawyer specializing in Internet law. They can help you audit your business’s online activities and identify any current or future liabilities tied to Section 230. A professional can guide you in adapting to potential changes in the legal landscape.

3. Contingency Planning: Be prepared for the possibility of a Section 230 repeal. Consider alternative advertising and lead generation strategies if your business relies heavily on social media or blog comments for thought leadership and customer acquisition. Diversifying your marketing efforts can help maintain a solid online presence, even if the legal landscape shifts.

In summary, taking a proactive approach to potential changes in Section 230 is essential for small businesses. By staying informed, consulting an attorney, and developing contingency plans, you can ensure your business thrives in an ever-evolving digital world. Remember, a well-prepared business is resilient, and staying ahead of the curve is vital in navigating any challenges that may arise from changes to Section 230.