Manne, Stout and Sperry, ‘Who Moderates the Moderators?: A Law and Economics Approach to Holding Online Platforms Accountable Without Destroying the Internet’

ABSTRACT
The salient objection to Section 230 reform that would saddle online platforms with any form of indirect liability for user-generated content is not one of principle, but of practicality: are there effective reforms that would meaningfully reduce the incidence of unlawful or tortious online content without destroying (or excessively damaging) the vibrant Internet ecosystem by imposing punishing, open-ended legal liability? Properly analyzed there are reasons to be optimistic about the possibility of effective reform.

In brief, this paper suggests that Section 230(c)(1)’s intermediary-liability protections for illegal or tortious conduct by third parties can and should be conditioned on taking reasonable steps to curb such conduct, subject to certain procedural constraints that will prevent a tide of unmeritorious litigation.

This basic principle is not without its strenuous and thoughtful detractors. A common set of objections to Section 230 reform has grown out of legitimate concerns that the economic and speech gains that have accompanied the rise of the Internet over the last three decades would be undermined or reversed if Section 230’s liability shield were weakened …

Manne, Geoffrey and Stout, Kristian and Sperry, Raymond, Who Moderates the Moderators?: A Law and Economics Approach to Holding Online Platforms Accountable Without Destroying the Internet (November 15, 2021).

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