DOJ proposes end of social media’s legal immunity: can it survive?

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The Department of Justice is drafting proposals on how to strip social media sites like Facebook and Twitter of legal immunities that they unfairly enjoy under Section 230 of the Communications Decency Act (CDA). As these companies curate, censor, and use algorithms to promote or demote content, they editorialize and should be subject to the same regulations as other media outlets.

Social media corporations have enjoyed the exceptions in question for over 20 years. Their power to direct the public discussion on major issues and thereby influence the democratic process is overwhelming.

Social Media giants have been behaving more and more like traditional publishers

Section 230 of the CDA has made these social media corporations immune from lawsuits over user-generated content. For example, they have not been liable for issues like users of their services engaging in defamation of others. This has been a precondition for their business model of publishing countless posts by users with relatively little oversight.

However, social media corporations have increasingly chosen to explore the slippery slope of censorship. This means that they are behaving like traditional publishers, with political biases and goals playing a glaring role in the policies of companies like Twitter. This has led lawmakers to call for the removal of their Section 230 protections.

Section 230 presents various related controversial issues. For example, subsection C-2 gives social media companies immunity from lawsuits over the censorship of “objectionable” content, leaving them the authority to define what is objectionable. Even if a user’s livelihood relies on their social media presence, they have no legal recourse if they are censored, shadow-banned, or de-platformed.

Social media giants may face antitrust complaints

 

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The DOJ is proposing to remove legal protections for social media platforms when they ‘facilitate or solicit’ user content or activity that breaks federal laws. That could include things like scams or drug trafficking. The DOJ also wants to protect victims by ensuring that social media companies are not immune from prosecution if they facilitate child exploitation, sexual abuse, terrorism, or stalking.

Perhaps most significantly, the DOJ is also proposing to remove immunity for social media corporations against antitrust claims and complaints of anti-competitive action. Under the proposals, they will also lose immunity in civil-enforcement actions brought by the federal government.

The social media empires will likely not lose their immunity for censoring what they define as ‘objectionable’ content, but incentivize them to implement fairer, more consistent policies.