June 10, 2020

The Executive Order on Preventing Online Censorship and What it Means for Your Online Business

On May 28, 2020, President Donald Trump signed the Executive Order on Preventing Online Censorship (referred to in this article as the “Executive Order”).  The Executive Order focuses in large part on Section 230(c) of the Communications Decency Act (referred to here as “Section 230”).  Section 230 supplements the First Amendment by protecting websites that publish third-party content from liability for that content (e.g. defamation).  The most significant portion of this law, and the most contested states, “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.”  This means that the writer/user is responsible for the content they post on the Internet, rather than the platform on which that content is posted.  This level of immunity from civil liability is greater than the immunity enjoyed by traditional publications and has empowered the Internet to become a forum for exponentially more speech than has ever previously existed.  Most analysts agree that the Executive Order was enacted in response to Twitter’s decision to label several of President Trump’s Tweets with the statement “get the facts”; this statement linked to a fact summary that directly contradicted the substance of the Tweets and articles on the same topic.

Although it does not seem to have any immediate legal effect, the Executive Order requires the preparation of a report on federal advertising spending on any website that publishes third-party content, formation of a working group, and drafting of a proposal for model legislation.  The remaining orders request all government agencies to review how they interpret Section 230 and the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) to consider preparing reports or developing model laws.  Keep in mind, each of these entities are independent and can choose to act on or ignore these requests.

Businesses that do not permit posting of third-party content are not impacted.  As long as Section 230 remains unchanged, businesses that do permit third-party content to be posted on their website are unlikely to experience any immediate impact.  However, in the event that the Executive Order leads to administrative or Congressional action that limits or entirely revokes Section 230 protection, any business that permits posting of third-party content (even something as simple as permitting customer reviews) could face substantial increased exposure to liability for any and all content.  This exposure could lead to the upheaval of the Internet as we know it and fundamentally alter the viability of certain businesses.

Despite the above, Section 230 was also designed to encourage service providers to self-regulate the dissemination of offensive material.  Businesses can take the step of updating their terms of use to more clearly define third-party content they consider objectionable and may be removed after posting.  While clear terms of use is not always required to obtain Section 230 protection, it could assist in defending a company’s decision to remove or edit certain third-party content and is a useful tool for limiting a company’s exposure to civil liability.

How Stubbs Alderton & Markiles, LLP can help.

We are a full-service business and litigation law firm with expertise in Internet law. We provide a broad range of advisory and compliance assistance, including designing terms of use best suited to your business’s needs and providing guidance of complex Internet laws, such as Section 230 and various privacy laws.

Executive Order Section 230Celina Kirchner is an attorney in the firm’s Litigation Practice Group.  For more information, email Celina at .

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