Pair of New Court Rulings Show Limits, Strengths of Section 230

CHATSWORTH, Calif.—Two recent court rulings, one involving a well-known author of graphic sex and BDSM fiction and nonfiction, show that while Section 230 continues to serve as a shield for online communication, the 24-year-old law considered sacred by internet rights advocates has its limits. Section 230 of the 1996 Communications Decency Act protects online information service providers from legal liability over posts by users of those services. The law, over the last two years, has come under repeated legislative threats, as politicians from both ends of the political spectrum attempt to cut back on the range of free speech it protects.  But in a recent ruling, the federal district court for the Eastern District of New York held that Section 230 will not protect the creator of an infamous online spreadsheet that purported to name men in the media who have allegedly committed sexual abuse or assault. The Google Docs spreadsheet created by journalist Moira Donegan became known as the “Shitty Media Men” list. The spreadsheet quickly went viral, and numerous other women added their own allegations against various men in the magazine and publishing industries. One of those men, sex writer Stephen Elliott, sued Donegan in 2018 for defamation, over allegations posted to the spreadsheet that he had committed “sexual violence” against several women. The lawsuit sought $1.5 million in damages for libel and emotional distress.  Donegan and lawyers argued because the list quickly spread beyond her control, and numerous other women contributed allegations to the “Shitty” sheet, she had become an “interactive computer service provider,” and therefore could not be held legally liable for the allegations on the list, due to Section 230 protections. The court agreed that Donegan did, in fact, qualify as an “interactive computer service provider.” But unlike most such providers, Donegan also acted as an “information content provider” herself, by contributing her own allegations to the list, according to the court. Because Section 230 provides protection only for content posted by third-party “providers,” Donegan—the court held—could not claim Section 230 protection. Though Donegan claims that she did not contribute to the allegations against Elliott posted on the list, the court said it had no way of determining whether she did or not. And as a result, Section 230 did not apply, and the lawsuit could continue. In a second recent case, however, a judge ruled that Section 230 did protect the classified ad site Craigslist from a lawsuit by a woman who says she was a victim of sex trafficking via an ad on the site.  According to a Technology and Marketing Law Blog analysis, a state court in California made the ruling even though the 2018 FOSTA/SESTA law specifically curtailed Section 230 protections for sites that promote sex trafficking. The FOSTA/SESTA law covered only criminal sex trafficking claims, and civil claims at the federal level. But state-level lawsuits, the court found, were not specified as a “carve-out” from Section 230 by the FOSTA/SESTA language, for reasons that remain unclear. The Craigslist ruling, according to the Technology and Marketing Law Blog, will likely be appealed to the federal Ninth Circuit court. Photo By Okan Caliskan / Pixabay