Daily Archives: October 21, 2020

Section 230 Basics: There Is No Such Thing As A Publisher-Or-Platform Distinction…


Date: October 21, 2020

01) LINK

” Where the confusion has arisen is in the use of the term “publisher” in another context as courts have interpreted Section 230. Sometimes the term “publisher” itself means “facilitator” or “distributor” of someone else’s content. When courts first started thinking about Section 230 (see, e.g., Zeran v. AOL) they sometimes used the term because it helped them understand what Section 230 was trying to accomplish. It was trying to protect the facilitator or distributor of others’ expression – or, in other words, the platform people used to make that expression – and using the term “publisher” from our pre-Section 230 understanding of media law helped the courts recognize the legal effect of the statute.

Using the term did not, however, change that effect. Or the basic operation of the statute. The core question in any Section 230 analysis has always been: who originated the content at issue? That a platform may have “published” it by facilitating its appearance on the Internet does not make it the publisher for purposes of determining legal responsibility for it, because “publishing” is not the same as “creating.” And Section 230 – and all the court cases interpreting it – have made clear that it is only the creator who can be held liable for what was created.

There are plenty of things we can still argue about regarding Section 230, but whether someone is a publisher versus a platform should not be one of them. It is only the creator v. facilitator distinction that matters.”

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