Beyond Section 230: A Pair of Social Media Experts Describes How to Bring Transparency and Accountability to the Industry

Urupong/Getty Images

COMMENTARY | We think change in Section 230 is coming – and we believe that it is long overdue.

One of Elon Musk’s stated reasons for purchasing Twitter was to use the social media platform to defend the right to free speech. The ability to defend that right, or to abuse it, lies in a specific piece of legislation passed in 1996, at the pre-dawn of the modern age of social media.

The legislation, Section 230 of the Communications Decency Act, gives social media platforms some truly astounding protections under American law. Section 230 has also been called the most important 26 words in tech: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

But the more that platforms like Twitter test the limits of their protection, the more American politicians on both sides of the aisle have been motivated to modify or repeal Section 230. As a social media media professor and a social media lawyer with a long history in this field, we think change in Section 230 is coming – and we believe that it is long overdue.

Born of porn

Section 230 had its origins in the attempt to regulate online porn. One way to think of it is as a kind of “restaurant graffiti” law. If someone draws offensive graffiti, or exposes someone else’s private information and secret life, in the bathroom stall of a restaurant, the restaurant owner can’t be held responsible for it. There are no consequences for the owner. Roughly speaking, Section 230 extends the same lack of responsibility to the Yelps and YouTubes of the world.

Section 230 explained.

But in a world where social media platforms stand to monetize and profit from the graffiti on their digital walls – which contains not just porn but also misinformation and hate speech – the absolutist stance that they have total protection and total legal “immunity” is untenable.

A lot of good has come from Section 230. But the history of social media also makes it clear that it is far from perfect at balancing corporate profit with civic responsibility.

We were curious about how current thinking in legal circles and digital research could give a clearer picture about how Section 230 might realistically be modified or replaced, and what the consequences might be. We envision three possible scenarios to amend Section 230, which we call verification triggers, transparent liability caps and Twitter court.

Verification triggers

We support free speech, and we believe that everyone should have a right to share information. When people who oppose vaccines share their concerns about the rapid development of RNA-based COVID-19 vaccines, for example, they open up a space for meaningful conversation and dialogue. They have a right to share such concerns, and others have a right to counter them.

What we call a “verification trigger” should kick in when the platform begins to monetize content related to misinformation. Most platforms try to detect misinformation, and many label, moderate or remove some of it. But many monetize it as well through algorithms that promote popular – and often extreme or controversial – content. When a company monetizes content with misinformation, false claims, extremism or hate speech, it is not like the innocent owner of the bathroom wall. It is more like an artist who photographs the graffiti and then sells it at an art show.

Twitter began selling verification check marks for user accounts in November 2022. By verifying a user account is a real person or company and charging for it, Twitter is both vouching for it and monetizing that connection. Reaching a certain dollar value from questionable content should trigger the ability to sue Twitter, or any platform, in court. Once a platform begins earning money from users and content, including verification, it steps outside the bounds of Section 230 and into the bright light of responsibility – and into the world of tort, defamation and privacy rights laws.

Transparent caps

Social media platforms currently make their own rules about hate speech and misinformation. They also keep secret a lot of information about how much money the platform makes off of content, like a given tweet. This makes what isn’t allowed and what is valued opaque.

One sensible change to Section 230 would be to expand its 26 words to clearly spell out what is expected of social media platforms. The added language would specify what constitutes misinformation, how social media platforms need to act, and the limits on how they can profit from it. We acknowledge that this definition isn’t easy, that it’s dynamic, and that researchers and companies are already struggling with it.

But government can raise the bar by setting some coherent standards. If a company can show that it’s met those standards, the amount of liability it has could be limited. It wouldn’t have complete protection as it does now. But it would have a lot more transparency and public responsibility. We call this a “transparent liability cap.”

Twitter court

Our final proposed amendment to Section 230 already exists in a rudimentary form. Like Facebook and other social platforms, Twitter has content moderation panels that determine standards for users on the platform, and thus standards for the public that shares and is exposed to content through the platform. You can think of this as “Twitter court.”

Effective content moderation involves the difficult balance of restricting harmful content while preserving free speech.

Though Twitter’s content moderation appears to be suffering from changes and staff reductions at the company, we believe that panels are a good idea. But keeping panels hidden behind the closed doors of profit-making companies is not. If companies like Twitter want to be more transparent, we believe that should also extend to their own inner operations and deliberations.

We envision extending the jurisdiction of “Twitter court” to neutral arbitrators who would adjudicate claims involving individuals, public officials, private companies and the platform. Rather than going to actual court for cases of defamation or privacy violation, Twitter court would suffice under many conditions. Again, this is a way to pull back some of Section 230’s absolutist protections without removing them entirely.

How would it work – and would it work?

Since 2018, platforms have had limited Section 230 protection in cases of sex trafficking. A recent academic proposal suggests extending these limitations to incitement to violence, hate speech and disinformation. House Republicans have also suggested a number of Section 230 carve-outs, including those for content relating to terrorism, child exploitation or cyberbullying.

Our three ideas of verification triggers, transparent liability caps and Twitter court may be an easy place to start the reform. They could be implemented individually, but they would have even greater authority if they were implemented together. The increased clarity of transparent verification triggers and transparent liability would help set meaningful standards balancing public benefit with corporate responsibility in a way that self-regulation has not been able to achieve. Twitter court would provide a real option for people to arbitrate rather than to simply watch misinformation and hate speech bloom and platforms profit from it.

Adding a few meaningful options and amendments to Section 230 will be difficult because defining hate speech and misinformation in context, and setting limits and measures for monetization of context, will not be easy. But we believe these definitions and measures are achievable and worthwhile. Once enacted, these strategies promise to make online discourse stronger and platforms fairer.

The Conversation

Robert Kozinets, Professor of Journalism, USC Annenberg School for Communication and Journalism and Jon Pfeiffer, Adjunct Professor of Law, Pepperdine University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.