Common law will finally apply to the Internet

“Silicon Valley platforms might not like being compared to ships causing oil spills, but it’s time for the digital platforms to likewise be held accountable for the harm they cause through their information pollution.”

For many of us, the dawn of the commercial use of the internet in the 1990s was a time for optimism, even utopianism. Recalling the sluggish innovation of the telephone era, when AT&T as a regulated monopoly had to get government approval to offer anything beyond a rotary-dial phone, many of us were thrilled when Congress formalized an unregulated internet, declaring in 1996 that the internet would be “unfettered by federal or state regulation.” Entrepreneurs would not have to get permission from a bureaucrat to launch a browser, website, or app.

In the enthusiasm for an open internet, we cheerleaders didn’t notice an unintended consequence when the law went beyond the benefits of permissionless innovation. The law also immunized platforms on the internet from a fundamental part of the common law. Section 230 of the Communications Decency Act declared that digital platforms, unlike analog publishers such as newspapers and magazines, would not be held accountable for the content they published. This was intended to give them immunity as they removed child pornography and other harms, but it became interpreted to mean that Facebook, Twitter, and YouTube could publish whatever they or their users wanted without being held to account. Centuries-old duties of care that apply to every other industry didn’t apply on the internet. They didn’t need to worry about defamation laws or other online harms they caused.

This immunity looks like it will end in 2021, marking a 25-year experiment that resulted in misinformation and hoaxes plaguing online platforms.

By now, news consumers don’t know what sources to believe in their Facebook feeds, resulting in less trust even for the most trustworthy journalism. When it comes to COVID-19 and vaccine news and information on the internet, an “infodemic” has resulted in many people saying they won’t take a COVID-19 vaccine, threatening the opportunity to defeat the virus through herd immunity. NewsGuard has identified 368 websites spreading misinformation about COVID-19 and issues regular reports on superspreaders of healthcare hoaxes on Facebook and other platforms.

Reforming Section 230 has bipartisan support in Congress, and President-elect Biden has even said he would repeal it altogether. The Trump Justice Department laid out reforms to Section 230 that would require the platforms to earn reduced immunity in exchange for showing “good faith” efforts. For the first time, the platforms would have to disclose their criteria for moderating content, show that they apply their criteria consistently — not on “deceptive or pretextual grounds” — and give publishers “timely notice describing with particularity the provider’s reasonable factual basis for the restriction of access and a meaningful opportunity to respond.”

The U.K. government would go further. British parliamentarians are brutal in their hearings as they grill Silicon Valley executives, whose inability to accept responsibility for harms make it clear that their irresponsibility is a feature of the system, not a bug. The U.K. is crafting legislation based on its Online Harms White Paper that would restore basic duties of care to the digital platforms, no longer exempting them from common law duties. For example, the platforms would have to take steps to reduce misinformation by providing their users with information about the sources of news they encounter online. Similarly, the European Commission promulgated a Code of Practice on Disinformation that requires the platforms to provide indications of the trustworthiness of sources online based on journalistic principles.

This is not the first time U.S. law had to be reformed after protecting an emerging industry by exempting it from basic obligations of the common law. In the 19th century, Congress wanted to protect the fledgling U.S. shipping industry from damage caused by accidents at sea. The Limitation of Liability Act of 1851 limited the financial liability for shipping companies from accidents they caused to the often trivial amount of the remaining value of the ship, instead of being held liable for the full extent of the damage caused. Congress eventually had to update the law to hold shippers fully accountable for the damage from oil spills caused by their negligence, no longer immunizing them from the basic duty of care under the common law.

Silicon Valley platforms might not like being compared to ships causing oil spills, but it’s time for the digital platforms to likewise be held accountable for the harm they cause through their information pollution.

L. Gordon Crovitz is co-CEO of NewsGuard and former publisher of The Wall Street Journal.

For many of us, the dawn of the commercial use of the internet in the 1990s was a time for optimism, even utopianism. Recalling the sluggish innovation of the telephone era, when AT&T as a regulated monopoly had to get government approval to offer anything beyond a rotary-dial phone, many of us were thrilled when Congress formalized an unregulated internet, declaring in 1996 that the internet would be “unfettered by federal or state regulation.” Entrepreneurs would not have to get permission from a bureaucrat to launch a browser, website, or app.

In the enthusiasm for an open internet, we cheerleaders didn’t notice an unintended consequence when the law went beyond the benefits of permissionless innovation. The law also immunized platforms on the internet from a fundamental part of the common law. Section 230 of the Communications Decency Act declared that digital platforms, unlike analog publishers such as newspapers and magazines, would not be held accountable for the content they published. This was intended to give them immunity as they removed child pornography and other harms, but it became interpreted to mean that Facebook, Twitter, and YouTube could publish whatever they or their users wanted without being held to account. Centuries-old duties of care that apply to every other industry didn’t apply on the internet. They didn’t need to worry about defamation laws or other online harms they caused.

This immunity looks like it will end in 2021, marking a 25-year experiment that resulted in misinformation and hoaxes plaguing online platforms.

By now, news consumers don’t know what sources to believe in their Facebook feeds, resulting in less trust even for the most trustworthy journalism. When it comes to COVID-19 and vaccine news and information on the internet, an “infodemic” has resulted in many people saying they won’t take a COVID-19 vaccine, threatening the opportunity to defeat the virus through herd immunity. NewsGuard has identified 368 websites spreading misinformation about COVID-19 and issues regular reports on superspreaders of healthcare hoaxes on Facebook and other platforms.

Reforming Section 230 has bipartisan support in Congress, and President-elect Biden has even said he would repeal it altogether. The Trump Justice Department laid out reforms to Section 230 that would require the platforms to earn reduced immunity in exchange for showing “good faith” efforts. For the first time, the platforms would have to disclose their criteria for moderating content, show that they apply their criteria consistently — not on “deceptive or pretextual grounds” — and give publishers “timely notice describing with particularity the provider’s reasonable factual basis for the restriction of access and a meaningful opportunity to respond.”

The U.K. government would go further. British parliamentarians are brutal in their hearings as they grill Silicon Valley executives, whose inability to accept responsibility for harms make it clear that their irresponsibility is a feature of the system, not a bug. The U.K. is crafting legislation based on its Online Harms White Paper that would restore basic duties of care to the digital platforms, no longer exempting them from common law duties. For example, the platforms would have to take steps to reduce misinformation by providing their users with information about the sources of news they encounter online. Similarly, the European Commission promulgated a Code of Practice on Disinformation that requires the platforms to provide indications of the trustworthiness of sources online based on journalistic principles.

This is not the first time U.S. law had to be reformed after protecting an emerging industry by exempting it from basic obligations of the common law. In the 19th century, Congress wanted to protect the fledgling U.S. shipping industry from damage caused by accidents at sea. The Limitation of Liability Act of 1851 limited the financial liability for shipping companies from accidents they caused to the often trivial amount of the remaining value of the ship, instead of being held liable for the full extent of the damage caused. Congress eventually had to update the law to hold shippers fully accountable for the damage from oil spills caused by their negligence, no longer immunizing them from the basic duty of care under the common law.

Silicon Valley platforms might not like being compared to ships causing oil spills, but it’s time for the digital platforms to likewise be held accountable for the harm they cause through their information pollution.

L. Gordon Crovitz is co-CEO of NewsGuard and former publisher of The Wall Street Journal.

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