•  
  •  
 

University of Miami Business Law Review

Document Type

Comment

Abstract

Section 230 of the Communications Decency Act (“CDA”) has been held to give online service providers acting as interactive computer services sweeping immunity for content posted on their platforms. The intention behind the creation of Section 230 was not to immunize online service providers from all liability. Rather, Section 230 was enacted to protect online intermediaries acting as “Good Samaritans” – those who made “good faith” efforts to restrict unlawful or harmful content, but due to the breadth of the internet and advancements in technology over or under-filtered content on their platforms. This note outlines an approach for courts to hold online service providers liable for the foreseeable consequences of harmful content on their platforms. Under a theory of premises liability, online service providers can be held liable for the foreseeable consequences of dangerous, harmful, or illegal content made by third parties and allowed on their platforms. In other words, like physical landowners or business operators, online service providers should have a duty to maintain their websites in a reasonably safe condition and to protect against, and remedy, harmful third-party content by making “good faith” efforts to moderate content. Generally, the owners of physical locations open to the public have a duty to make reasonable efforts to protect people against foreseeable harm caused by the acts of third parties that they know, or should know about, and that are likely to occur without such efforts. That same duty should be extended to the online context. By extending a duty similar to that required in the theory of premises liability, online platforms will be incentivized to implement measures to prevent future da present once having been informed of such. Only when online intermediaries make reasonable, “good faith” moderation efforts, should they be given immunity under Section 230. Thus, applying the theory of premises liability to the online context would serve the purpose of Section 230 better than the status quo. Specifically, this note applies the theory of online premises liability by applying it to two cases that were submitted to the United States Supreme Court for review this term – Herrick v. Grindr (review denied on October 7, 2019) and Daniel v. Armslist (review denied on November 25, 2019). This analysis will demonstrate how the imposition of a duty similar to that of premises liability will incentivize online operators to implement measures to prevent against foreseeable harm.

Download

Share

COinS