Donald Trump’s 29 May Executive Order attacking section 230 of the US 1996 Communications Decency Act attracted only limited attention this side of the Atlantic. We do, after all, all have bigger things on our minds right now. However, it is a matter that should be followed closely, both by media law practitioners and the wider public on this side of the Atlantic – because America’s social media is also ours, and the issues at stake come down to freedom of speech and its limits.

The Sword and the Shield

The core principles of the targeted s.230, entitled “Protection for “Good Samaritan” blocking and screening of offensive material”, are below:

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.
No provider or user of an interactive computer service shall be held liable on account of-any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

The section thus provides both a shield and a sword. Social media giants are immune from lawsuit for what you and I publish on them: they’re the innocent magazine rack, not the dirty magazine maybe placed on it. But if, in good faith, they intervene to clean up their content, they also cannot be challenged for that moderation. But …where does good faith moderation end, and censorship begin? And if that moderating sword is thus abused, should the provider still retain the shield?

Well, that escalated quickly…

The President and many of his supporters have long suggested that social media companies are liberal-biased and cross the line to censorship (even as they provide an unprecedented platform: the man with over 52,000 Tweets to his name says that they “totally silence conservatives”). These conservatives have identified narrowing s.230’s protection as a means of exerting pressure on the new media giants. So, on 27 May, when Twitter made the decision to fact-check as “unsubstantiated” one of Donald Trump’s tweets (alleging widespread fraud in mail-in voting), it may have anticipated the response. Within two days Trump had signed the Executive Order mentioned at the start of this article, asserting that if providers want to keep their legal protections, they will be required to avoid “editorial” actions inconsistent with being a mere platform. It would take the defining of “good faith” out of their hands and give it to the Federal Communications Commission – within reach of the executive. The plans would make platforms more vulnerable to litigation. Promptly, within hours of the Order, Twitter hid one of the President’s tweets entirely – for “glorifying violence”.

The political theatre is clear: an old-fashioned power struggle between the executive and the newest incarnation of the fourth estate. Each is attempting to signal to the other that it holds the whip hand; that it may criticise but should never be criticised. With a click, Twitter can both silence the President of the United States and impugn his credibility (in an election year); the President signals that he can expose Twitter (and others) to a flood of lawsuits and regulatory headaches if it attacks him. Twitter, at the time of writing, has not gotten the message; it (and Facebook) recently removed his tribute video to George Floyd for breach of copyright. Twitter may be gambling that the detailed legislation to implement the Order will never make it into law. (Alternatively, perhaps, Trump should’ve kept his Order below 280 characters if he wanted them to read it…)

Perspectives from the 51st State

From this side of the pond, the irony is that the President’s order threatens to create a legal environment for the USA similar to that which actually existed in England & Wales up until 2013 – and indeed still stands in Scotland, with the shelving of Lord Pentland’s proposed reforms. The “webmaster’s defence” introduced into England & Wales by the Defamation Act 2013 s.5 provides a (conditional) shield similar to that created by s.230. Prior to the Act, unless platforms could establish a defence or an applicable “safe harbour” position, they could be held responsible for content published on their websites. It was a major headache for publishers here prior to 2013, and created a chilling effect on freedom of speech because publishers took more things down – and the internet has not become any simpler or more civilised in the last seven years.

Five minutes in the Augean underbelly of Twitter or YouTube is enough to persuade anyone of the merits of a clean-up. There are proper moral arguments for the limitation or revocation of the shield, here and in the USA, to encourage global providers to deal more proactively with online disinformation, defamation and other modern diseases. This firm has been at the forefront of some of them on this side of the pond. But the President’s reasons appear to be more self-centred.

For further information on this blog post or advice please contact Oliver Cox.

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