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Your internet law PSA of the day:
The latest iteration of this recurrent question centers around seizure- and migraine-triggering user icons. Many people have suggested that LJ, by not taking action against such icons, risks legal liability for the harm caused by them. This is modified from a comment I made to![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
mecurtin’s post (which has, by the way, a fair amount of the usual trolling).
I'd agree that LJ should at least ban such icons, and probably users who admit to deliberately using them. However, under section 230 of the Communications Decency Act, LJ is not responsible for user-provided content, except in circumstances not relevant here. The closest litigated analogy is probably lawsuits against MySpace for exposing underage users to sexual predators; MySpace wins those cases, and should. The rules for internet service providers are very protective compared to the rules for offline publishers, and there are pretty good reasons for that, though I think that section 230 is probably too broad and should be modified.
In response, one commenter agreed with me and expressed the opinion that the dividing line between liability and immunity is whether users can post content without prior approval, and that LJ risks its safe harbor by censoring content. (I set aside, as not helpful here, discussion of what it means to “censor.”)
The commenter’s opinion is intuitive, but law is not always intuitive. In the US, the protections are much broader than that. LJ could screen and select content and still be entitled to the protections of 230. The key distinction is whether LJ itself created the unlawful content, or merely allowed it to be posted. Moreover, LJ would not lose any 230 safe harbor by censoring. In fact, 230 was passed in large part with the promise that it would encourage internet service providers to monitor and suppress objectionable content, by promising them that they wouldn't ever be held liable for what was left over. (This was thought to remove the bad incentives created by previous court decisions holding one ISP not liable for defamation by a user, because that ISP didn't ever screen, whereas CompuServe had been held liable for the same thing based on its monitoring of its messageboards for things like profanity.) Take a look at the title of the section: "Protection for private blocking and screening of offensive material." It didn't do what Congress hoped, but that was the intent.
( Scalzi, sf )
The latest iteration of this recurrent question centers around seizure- and migraine-triggering user icons. Many people have suggested that LJ, by not taking action against such icons, risks legal liability for the harm caused by them. This is modified from a comment I made to
mecurtin’s post (which has, by the way, a fair amount of the usual trolling).I'd agree that LJ should at least ban such icons, and probably users who admit to deliberately using them. However, under section 230 of the Communications Decency Act, LJ is not responsible for user-provided content, except in circumstances not relevant here. The closest litigated analogy is probably lawsuits against MySpace for exposing underage users to sexual predators; MySpace wins those cases, and should. The rules for internet service providers are very protective compared to the rules for offline publishers, and there are pretty good reasons for that, though I think that section 230 is probably too broad and should be modified.
In response, one commenter agreed with me and expressed the opinion that the dividing line between liability and immunity is whether users can post content without prior approval, and that LJ risks its safe harbor by censoring content. (I set aside, as not helpful here, discussion of what it means to “censor.”)
The commenter’s opinion is intuitive, but law is not always intuitive. In the US, the protections are much broader than that. LJ could screen and select content and still be entitled to the protections of 230. The key distinction is whether LJ itself created the unlawful content, or merely allowed it to be posted. Moreover, LJ would not lose any 230 safe harbor by censoring. In fact, 230 was passed in large part with the promise that it would encourage internet service providers to monitor and suppress objectionable content, by promising them that they wouldn't ever be held liable for what was left over. (This was thought to remove the bad incentives created by previous court decisions holding one ISP not liable for defamation by a user, because that ISP didn't ever screen, whereas CompuServe had been held liable for the same thing based on its monitoring of its messageboards for things like profanity.) Take a look at the title of the section: "Protection for private blocking and screening of offensive material." It didn't do what Congress hoped, but that was the intent.
( Scalzi, sf )
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