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US communications regulator to revisit Section 230 safe harbour protections for social media companies

Photo of Ajit Pai, chair of US Federal Communications Commission (FCC)
Ajit Pai, chair of US Federal Communications Commission (FCC)

The legal immunity enjoyed by internet companies such as Facebook and Twitter is under challenge in the US. Ajit Pai, chair of the US Federal Communications Commission (FCC) announced that the regulatory body will start exploring the legal interpretation of Section 230 of the Communications Decency Act of 1986, which guarantees safe harbour protections to companies operating on the internet.

Pai’s announcement came just a day after Twitter and Facebook, in a controversial more, decided to block and impede the distribution of news articles by the New York Post with supposedly unverified information about Democratic presidential nominee Joe Biden and his family, inviting widespread criticism from Republican leaders, including US President Donald Trump. It also follows repeated attempts by the country’s executive and legislative branches of government to dilute Section 230 protections to bring social media companies like Facebook and Twitter to heel. From the country’s judiciary, Supreme Court Justice Clarence Thomas recently said the legal immunity under Section 230 was being interpreted too broadly, and that the court needs to examine it in the future.

In a statement, Pai said that the US Department of Commerce had petitioned FCC to “clarify the ambiguities in section 230”. He said that all branches of the US government had expressed “serious concerns” about Section 230. He added that there is bipartisan support in the Congress to reform the law.

“As elected officials consider whether to change the law, the question remains: What does Section 230 currently mean? Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230. The Commission’s General Counsel has informed me that FCC has the legal authority to interpret Section 230. Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning.” — Ajit Pai, chair, US Federal Communications Commission

Pai claimed that he favoured “regulatory parity”, transparency and free expression. He said social media companies have the right to free speech, but they don’t have have the right to “special immunity denied to other media outlets, such as newspapers and broadcasters”. However, it must be noted that this statement is not strictly true: news publishers who have a presence online, with comment boards on their stories, are also afforded the same protections as a Facebook, Twitter or any other social media company.

Why is Section 230 under attack, and how would it be amended?

Section 230 protects internet companies from being held legally liable for any illegal content (such as hate speech, child pornography and so on) that users post on their platforms. For instance, if a Facebook user posts hate speech on their profile, they would be legally prosecuted against, not Facebook. These protections, called the safe harbour protections, allow companies to operate with a free hand, without worrying about legal compliance. They also allow the companies to enforce their own community guidelines to take down objectionable content. Essentially, social media companies are not treated as publishers of this content, unlike in the case of newspapers or other news outlets.

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Pai seems to be following an executive order issued by the Trump administration in May 2020 which directed the FCC to propose regulation to clarify how companies can be allowed to use Section 230 to take down content without providing adequate notice to users. The order was issued after Twitter restricted a tweet from Trump. At the time, the FCC was divided: Commissioners Jessica Rosenworcel and Brendan Carr had criticised the order, saying “it is not the answer”. Another Commissioner Mike O’Reilly — a Republican — has called the order “unconstitutional”; his renomination to the FCC was withdrawn in August.

Read: On Trump’s Executive Order regarding platforms and what it means for India

Trump loudest critic of Section 230: US President Donald Trump has consistently accused allows social media companies of using Section 230 to censor pro-right wing and Republican content . On Thursday, for instance, he lashed out at Twitter and Facebook for blocking the New York Post’s stories on Joe Biden, adding in no uncertain terms “REPEAL SECTION 230!!!”. Last month, he had criticised Twitter for allowing an morphed picture of Mitch McConnell, leader of the Republicans in the US Senate, on the platform. He called on McConnell to pass legislation that would repeal Section 230 of Communications Decency Act.

On the flip side, Joe Biden has also called for the removal of Section 230. In January this year, Biden had told the New York Times that internet companies were able to get away with “propagating falsehoods” because of Section 230 protections. He said that if a newspaper could be held liable for false information published by them, but companies like Facebook were exempt because they were tech companies.

If Section 230 is diluted in the way the DoJ had suggested last month, social media companies will have to tone down their content moderation activity by a great deal.

  • No ‘blank cheque’ to companies: Currently, Section 230 requires companies to follow a system known as “Good Samaritan” blocking, wherein “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable“ can be removed. The phrase “otherwise objectionable” is what gives companies the freedom a wide freedom to decide what content is actually objectionable on their platforms. The DoJ has criticised how this phrase is being used as a “blank cheque” by companies to take down “any content they want”.
  • No more censoring of content in ‘bad faith’: The DoJ said that the amendments would clarify the scope of immunity as applied to content moderation decision. This, it claimed, would ensure that platforms no longer “hide behind the shield of Section 230 to censor lawful speech” in bad faith.
  • Control ‘deceptive’ takedowns of lawful content: Additionally, companies would be forced to provide users with “plain and particular” terms of service, and explanations for take down decisions. This would, according to the DoJ, discourage companies from taking down lawful content in a deceptive manner.

Discussions over Section 230 are likely to remain in the news for the next few weeks. A Senate committee has scheduled a hearing on the subject later this month, on October 28, when the CEO’s of Facebook, Google and Twitter are expected to testify. Contentious debates and lines of questioning are all but expected.

What does this mean for India?

Indian politicians have also started looking closely into the issue of liability protections afforded to internet intermediaries. A couple of months ago, a Wall Street Journal report, which accused Facebook of refusing to censor hate speech made by ruling Bharatiya Janata Party (BJP) leaders, kicked up a storm in the country. Subsequently, the Parliamentary Standing Committee on Information Technology, headed by opposition Congress MP Shashi Tharoor, questioned Facebook India head Ajit Mohan. The Delhi Assembly’s Committee on Peace and Harmony has also held hearings to discuss the allegations against Facebook, which Mohan refused to attend.

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Since the Journal report, two MPs — BJP’s Tejasvi Surya and Shiv Sena’s Priyanka Chaturvedi — have called for a repeal of intermediary liability protections under the Information Technology Act, 2000. Chaturvedi had criticised social media companies for failing to self-regulate, claiming that this brought on the need for a new legal framework. Surya had called the protections “unconstitutional”.

Even some of the rhetoric from US and Indian politicians is similar. IT Minister Ravi Shankar Prasad — just like Trump has done in the US — has criticised Facebook for censoring pro-right content.

The Intermediary Liability Guidelines (Amendment) Rules, 2018 — which proposes changes similar to the ones proposed in case of Section 230 in the US — has in limbo for nearly two years. A repeal of Section 230 protections in the US will set international precedent on the subject, likely providing impetus to the Indian government to go forward with its own amendments. It remains to be seen if the US government will indeed go ahead with this, and if so, how long it will take.

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