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Anupam Chander, Section 230 and the International Law of Facebook, 24 Yale J. L. & Tech. 393 (2022).

As the entire universe of speech, commerce, warfare, and living (Meta’s steep but so far unavailing investments notwithstanding) moves into cyberspace, tying together nearly every corner of the globe, the problem of governing the burgeoning world of virtual interactions and their real-life effects (or alleged effects) has become critical. In his careful and important essay, Section 230 and the International Law of Facebook, Anupam Chander elaborates the critical role of Section 230 of the 1996 Telecommunications Act, what Jeff Kosseff calls the 26 words that created the internet, as the cornerstone protection for a governance regime that prioritizes the flow of ideas and information over one that would “strengthen the hand of those around the world who seek to impose liability for either permitting speech or curbing speech.” (P. 396.)

Stated simply, Section 230 bars liability for those hosting (although they generally must not contribute to) content made available through the internet. Chander’s argument is nuanced. His primary thesis is objective in nature: Section 230’s legal effect is global and far-reaching, finding its way into bilateral and multilateral treaties and shaping adjudication over the responsibility of content hosts in both U.S. and foreign courts. Yet it is the normative elements of the essay that provide the most force, providing a stark—even nightmarish—scenario should Congress, as some members of the chamber have threatened, retreat from Section 230’s essential protections.

This essay is one I like a lot, and I hope others active in the study and shaping of private and public international law as well as the law of data freedom will as well. In addition to contributing valuable analysis to the growing literature on how municipal law in influential jurisdictions (think privacy laws adopted in California and the European Union) shapes global norms and rules, Chander undertakes a valuable effort to 1) map the legal terrain of treaty text, domestic, and foreign adjudication where Section 230 plays both decisive and contributing roles in protecting content hosts; 2) elaborate (he has done much work on the topic elsewhere) the critical role Section 230 has played in developing community guidelines and self-regulatory mechanisms that allow internet commerce, speech, and interaction to flourish; and 3) illustrate (if perhaps subtly so) the difficult reckoning lawmakers would face were they to backtrack.

Chander’s treatment is particularly timely in light of the current efforts to reach an international pandemic agreement. The most recent draft text of that convention, accord, or other international instrument (its binding effect is yet to be determined) specifically includes a definition of an “infodemic,” and national laws will inevitably follow to address public health disinformation, both pretextual and sincere. Chander anticipates this kind of challenge, noting that then-President Jair Bolsonaro attempted to penalize Facebook, Twitter, and YouTube for taking down content he posted that the platforms considered COVID-19 disinformation. Chander writes that Bolsonaro’s “decree was quickly blocked by both the Brazilian Senate and, an hour later, the Supreme Court, due to concerns about the constitutionality of the provisional measure. Section 230 provides the background U.S. legal protection from liability for removing what the platforms believe to be disinformation. The platforms formulated their content moderation approach against this background, an approach later vindicated in the Brazilian case.” (P. 406.)

To be sure, the road ahead is fraught for not only the platforms but for those who create and upload content and those affected by the content’s reach. The U.S. Supreme court upheld protections for Facebook, Google, and Twitter this term, but did so through analysis of the Justice Against Sponsors of Terrorism Act rather than, as they had been invited to do, construction of Section 230’s liability shield. Chander ties Section 230 to Article 19 of the International Covenant on Civil and Political Rights which provides that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” But Article 19 does not stop there. It conditions those rights with special responsibilities: “It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order . . . or of public health or morals.

It is these precise kinds of restrictions, likely the result of legislative rather than judicial action, that Chander anticipates. A world where social media and internet search platforms are liable, even in an attenuated way, for the content they allow to be communicated, could place them more squarely as gatekeepers for content that may be valuable but unpopular, even offensive; certainly raise the costs of business that would be passed on to advertisers for sure and perhaps by users through subscription or other fees; and generally raise inevitable barriers to speech and commerce that now flow relatively (though certainly not perfectly) freely, at least in much of the world. But COVID-19, a world increasingly characterized by state-sanctioned violence against civilians and non-combatants, and the disappearing distinctions between the virtual and the tangible will present formidable challenges to the status quo approach.

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Cite as: Sam F. Halabi, The 26 Words Legislating Speech on the World Wide Web, JOTWELL (June 8, 2023) (reviewing Anupam Chander, Section 230 and the International Law of Facebook, 24 Yale J. L. & Tech. 393 (2022)), https://intl.jotwell.com/the-26-words-legislating-speech-on-the-world-wide-web/.