The three cases that could break the internet

The section, often described as “the 26 words that created the internet,” says that “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.”

Effectively, it absolves digital platforms from liability for the content posted by their users as long as they aren’t aware of any crime being committed. If leaves any regulation of content and the users to the platforms.

The Texas and Florida cases have been supported by Republicans who believe the largely Silicon Valley-based companies are censoring conservative viewpoints and characterise their actions after January 6, when Twitter and Facebook were in the spotlight for their perceived role in facilitating the inciting and organising of the insurgency, as an assault on free speech.

Ironically, the Democrats would also like to rewrite Section 230, albeit that they want more moderation of content and want the law to force the removal of hate speech, extremism and politically-inspired falsehoods. They want more censorship, not less.

While the Supreme Court probably won’t deliberate on the Texas and Florida cases until late this year, assuming it does ultimately decide to hear the two challenges to the states’ laws, its decisions have the potential to remake the internet and it wouldn’t be only the big social media platforms affected.

The platforms’ global reach means that any decisions made by the US Supreme Court could also have far-reaching implications for societies, politics and economies well beyond America’s borders.

There are a host of sites and digital businesses, big and small, that are powered and generate their value from user content, interactions and recommendations. They could all be impacted.

Section 230 has enabled speech to be freer in the digital environment than it is in terrestrial activity, where all sorts of laws impose liabilities for what people say and write and make publishers and broadcasters liable for the content they carry.

If digital platforms had to monitor and moderate all content on their platforms – if they lost the discretions they have to self-regulate, or not – they might well be rendered uneconomic.

Equally, if they were broadly unable to moderate the content or decide who has access to their platforms they could jeopardise their social licences, with similar economic effects.

Section 230 is vital to the business models of the social media giants but it is perhaps inevitable that laws designed to shield and promote the growth of an industry that was just emerging when the laws were written (Facebook was founded eight years later) would be questioned 27 years later, when a few mega-techs companies dominate global social media activity.

Indeed, in Europe last year, laws – the European Union’s Digital Services Act – have been enacted that regulate and impose obligations on digital services providers that act as intermediaries in connecting consumers with each other, with content, with goods and with services online.

The legislation requires mechanisms for enabling users to flag illegal content and on platforms to identify and remove illegal content.

There are provisions that enable users to challenge platforms’ content moderation decisions if their content is removed but also requirements to mitigate use of their services that could lead to disinformation, election manipulation, cyber violence against women or harm to minors.

There are also requirements for transparency around the algorithms the platforms use for recommending products or content.

In the US, until now (and with the possible exception of the “new” Twitter under Elon Musk), the more extreme user content and obvious disinformation is found on niche social networks. The big platforms have, to various degrees, self-regulated.

The Supreme Court cases, whichever way they go – whether they uphold the conservative definitions of “free” speech or endorse the long-standing interpretation of Section 230 – could have profound implications for the platforms and their economics.

Between the extremes of the debates about online content – the unfiltered free-for-all favoured by libertarians or the curated content desired by the social progressives – there are no easy answers.

What’s obvious is that any decisions that undermined the platforms’ ability to tailor content to users’ interests by recommending similar content or which restricted them from blocking or censoring harmful or misleading content – particularly misleading political content – would have consequences, not just for the platforms’ finances but for American society and politics.

The platforms’ global reach means that any decisions made by the US Supreme Court could also have far-reaching implications for societies, politics and economies well beyond America’s borders.

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