Abstract: The growing amount of unlawful activity perpetrated over online platforms calls into question internet exceptionalism—the notion that the internet is so unique, yet so delicate, we must shield it from the ordinary legal mechanisms that promote accountability. The time has come to restore for online platforms the common law duty of reasonable care that—but for the current application of section 230 of the Communications Act—would hold them accountable when they negligently, recklessly, or knowingly facilitate harm. The best way of accomplishing that is for Congress to amend section 230 to require that online platforms take reasonable steps to curb unlawful conduct as a condition of receiving the section’s liability protections. In addition, congress could address misinformation, bias, and hate speech by adopting transparency provisions requiring that platforms: 1) inform users of the platforms’ content moderation policies, and 2) provide a process for users to challenge the platforms’ decisions to take down or leave up particular content under those policies.
Abstract: Analyzes the Lunney v. Prodigy online libel case, in which the N.Y. Supreme Court treated Prodigy like a common carrier to avoid having to address issues concerning retroactive application of section 230. The article concludes that analogizing online service providers to common carriers was unwise. In the process, the article discuses Cubby v. CompuServe, Stratton Oakmont v. Prodigy, Zeran v. America Online, and Blumenthal v. Drudge—four leading online libel cases.