Since 1996, online platforms have been mostly immune from tort liability for content posted on their sites. If you had a beef with the content, your sole remedy was/is to file an action against the person who posted the content. Not easy to do. The platforms are immune because of a provision called Section 230 of the Communication Decency Act. That Section was designed to give the fledgling online industry some breathing room to grow so it would not face crushing tort liability.
Note, newspapers never had this type of immunity. If a reporter recklessly publishes a story that is fiction and it destroys your reputation – and the “news” is not a matter of public interest, you can sue the paper as well as any person quoted in the story who sullied your reputation.
It’s more complicated than that, but that’s the gist of it.
Section 230 prevents doctors from suing online review sites for a negative review. That’s true even if the poster calls you a pedophile, butcher, or any other defamatory name. Again, if you can identify the poster, and you have the wherewithal to endure a two year expensive legal process with an uncertain outcome, you can take THAT person to court. But, leave the rating site out of it. Section 230 keeps them away from any liability. I’ve seen every variety of clever lawyering trying to defeat Section 230. Few have succeeded. And in those few cases, the facts were unique and unlikely to be repeated in other circumstances. Further, in some states, because of another set of laws called anti-SLAPP, a rating site, victorious in its Motion to Dismiss, might be able to come after you to be reimbursed for its legal fees.
What does this have to do with sex trafficking?
For years, an online platform called Backpage has been able to shield itself from liability for allegations suggesting online ads on its site are thinly veiled solicitations for prostitution, sometimes involving underage victims. Section 230 has prevented advocates for these victims from seeking justice against the platform.
Recent legislation sponsored by Sens. Rob Portman and Richard Blumenthal hope to change that outcome. The bill is known as the Stop Enabling Sex Traffickers Act. The bill would carve out an exception to immunity for online platform tort liability. Specifically, it would eliminate federal liability protections for websites that assist, support, or facilitate a violation of federal sex trafficking laws.
Congress has asked the tech industry to do a better job policing its own. The tech industry wants to water the bill down. It argues that forcing companies to police all content for evidence of sex trafficking would create an unreasonable burden. But tech companies are already doing this to enforce copyright laws. So, if it can be done to assist movie studios, can’t it be done to help underage victims of sex trafficking?
The Senate Bill has 30 co-sponsors and bipartisan support.
This may be the long awaited crack in Section 230 tort immunity that many have been waiting for. If you can’t carve out an exception in Section 230 for underage victims of sex trafficking, then it’s hopeless to expect carve-outs for any other matter.
But, if the bill passes, it may the beginning of process to hold review sites slightly more accountable.
This brings me to my next point.
A number of review sites are willfully blind to the fact their platforms are being leveraged to extort money or services from physicians. I’ve heard from a number of physicians who received texts or emails from patients stating that if their money is not refunded, they will slam the doctor online. And the doctor can’t violate HIPAA to tell his side of the story. This reeks of extortion plain and simple. To be fair, some review sites will take down posts from individuals who make such threats. (And such sites are to be commended for doing the right thing.) But, many will not. These sites are under no legal obligation to take any action precisely because of Section 230.
But just as the two sponsoring Senators have asked the tech industry to be better citizens to sidestep having to pass the anti-sex-trafficking bill, the online platforms should adopt better standards to avoid being complicit in allowing extortion to take place.
Just my two cents worth. What do you think?