Online Freedom and Viewpoint Diversity Act Yet Another Republican Proposal to Limit Section 230 Liability Protections

Earlier this week, a group of Republican Senators, including Roger Wicker (R-MS), Lindsey Graham (R-SC), and Marsha Blackburn (R-TN) introduced the Online Freedom and Viewpoint Diversity Act.  This proposal seeks to “modify the scope of protection from civil liability for ‘good Samaritan’ blocking and screening of offensive material” under Section 230 of the 1996 Communications Decency Act.  The Online Freedom and Viewpoint Diversity Act is another in the growing list of proposals to amend the scope of Section 230 that have come in 2020, which also includes:  the bipartisan Senate Platform Accountability and Consumer Transparency Act (“PACT ACT”), which we analyzed here; a different Senate Republican proposal and a Department of Justice report, both of which we analyzed here; and the Trump Administration’s executive order.

As currently written, Section 230 states that 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.”  Section 230 currently protects from civil liability any “provider or user of an interactive computer service” for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”  And Section 230 also provides immunity from liability for “any action taken to enable or make available information content providers or others the technical means to restrict access to such materials.”

The Online Freedom and Viewpoint Diversity Act would change certain of these liability protections for online platforms.  The proposal would amend Section 230 by removing the phrase “considers to be” and providing immunity from civil liability only when content moderation decisions satisfy an “objectively reasonable belief standard.”  Additionally, the proposal would narrow the enumerated list by removing the phrase “otherwise objectionable” and replacing it with the words “promoting self-harm, promoting terrorism, or unlawful.”  Moreover, “any decision or agreement made or action taken by a provider or user of an interactive computer service to restrict access to or availability of material provided by another information content provider” would be immune from civil liability only if it satisfied the “objectively reasonable belief standard.”

Lastly, the proposal would revise the definition of “Information Content Provider,” which is currently defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”  The proposal would add that being “responsible in whole or in part for the creation or development of information” includes “any instance in which a person or entity editorializes or affirmatively and substantively modifies the content of another person or entity.”  But the proposal would also amend Section 230 such that responsibility for the creation or development of information “does not include a change to the format, layout, or basic appearance of the content of another person or entity.”

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