My former student Ben Horton has published The Hydraulics of Intermediary Liability Regulation, 70 Clev. St. L. Rev. 201 (2022), making an important point about the tradeoff between exposing platforms to greater liability for unlawful content and their ability/incentives to remove "lawful but awful" content. Recommended!
Abstract:
The intermediary immunity created by Section 230 probably protects claims based on the non-legal harms of hate speech and misinformation as well as a European-style proportionality system of content moderation better than a more “legalized” intermediary liability regime would. Contrasting the existing non-copyright content moderation systems with empirical research on the effects of the Digital Millennium Copyright Act (DMCA) shows that a comprehensive regulation of content moderation would incentivize the moderation of defamation and negligence claims at the expense of these important non-legal claims and incentivize a homogenous, categorical approach to content moderation. Furthermore, empirical research on the effects of SESTA-FOSTA and online secondary copyright liability outside the DMCA’s safe harbor shows the effects of a non-comprehensive solution would be even worse: incentivizing widespread automation and crude blocking with negligible positive effects. Instead, policymakers should focus on narrow changes to Section 230, remedies that punish systemic violations, and non-tort solutions.
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