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  • Emanne Khan

Is Amending Section 230 the Answer to Our Fake News Problem?

This is the second article of a two-part series.

In the first installment of this series, we examined how the modern media reform movement emerged from opposition to telecommunications deregulation; explored two pressing items currently on the movement’s agenda, combatting media consolidation and reviving net neutrality; and predicted what the Biden administration might do about these issues. In this follow-up article, we’ll go in depth on another priority for U.S. media reform advocates: curbing the spread of misinformation, and the legal mechanism President Biden might use.

Our Fake News Problem

If you’ve kept up with politics over the past four years, you’ve almost certainly heard the term “fake news.” Former President Donald Trump is often credited with mainstreaming the term thanks to his repeated use of it to disparage unfavorable press coverage, and in 2019 he even claimed to have coined it.

In actuality, Craig Silverman, the media editor of BuzzFeed News, was one of the first people to use the term on a consistent basis. While working at Columbia University’s Tow Center for Digital Journalism in the mid 2010s, Silverman helped uncover what the BBC described as “a unique marriage between social media algorithms, advertising systems, people prepared to make stuff up to earn some easy cash and an election that gripped a nation and much of the world.”

Throughout the 2016 U.S. presidential election season, Silverman studied an explosion of news stories mostly promoting Trump that originated from a small town in Macedonia and earned their authors hundreds of thousands of social shares and thousands of dollars in advertising revenue. The stories masqueraded as credible news sources but contained unverified information. One story with a false headline about Democratic nominee Hillary Clinton garnered nearly three times as many shares, reactions, and comments on Facebook as an exclusive story from the New York Times about Trump’s tax returns. Clinton was also one of the subjects of a false conspiracy theory dubbed “Pizzagate” that blew up on Twitter and 4chan shortly after the election and culminated in a man firing a rifle inside of a pizza restaurant in Washington, D.C.

The fake news flood didn’t dry up after 2016. Just last year, researchers at the social media analysis platform Graphika reported that a years-old Russian propaganda campaign they dubbed “Secondary Infektion” has been consistently spreading fake news and conspiracy theories about everything from Ukrainian politics to COVID-19.

The events of the past several years have shed light on the unique role that social media plays in enabling the spread of misinformation. At the heart of this phenomenon is the sheer amount of money brought in by false, sensationalized headlines. Paul Horner, a now-deceased contributor to fake news websites, told the Washington Post in 2016 that his stories raked in $10,000 a month in AdSense, Google’s system that allows websites to earn money from advertisements. BuzzFeed reported in 2017 that there are enough advertising programs like AdSense that many fake news publishers sanctioned by certain programs will simply find others to milk for cash.

The question then becomes: what are social media sites and the Big Tech companies that run them doing to control the spread of fake news? The answer takes us all the way back to 1996.

A Potential Solution: Section 230

As you may recall from part 1 of this series, Congress passed the Telecommunications Act of 1996 to promote competition in the telecommunications industry through deregulation. While the Act did away with certain regulations, it also instated new rules meant to protect minors from “obscene,” “indecent,” and “patently offensive” content on the internet. This set of rules governing the type of content minors are allowed to be shown is commonly known as the Communications Decency Act (CDA).

During conference committee proceedings for the Telecommunications Act that same year, Rep. Christopher Cox (R-CA) and Sen. Ron Wyden (D-OR) tacked a new provision onto the CDA. The new provision is known as Section 230 and 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." According to the Electronic Frontier Foundation, this statutory jargon really means that Internet Service Providers and other online publishers of third-party content cannot be held legally responsible for the content that users upload to their sites.

There are clear benefits to the protection that Section 230 offers. Publishers of third-party content, like the social media sites that so many of us use on a daily basis, can practice self-moderation and do not have to fear legal repercussions for what their users might upload; sites are therefore more apt to foster innovative online communities. YouTube videos, Amazon reviews, and Craigslist ads are just a few examples of the user-generated content Section 230 has enabled over the years.

However, Section 230 also has a dark side. It effectively absolves tech companies of responsibility for dangerous content circulated on their platforms. Today, that means sites like Facebook and Twitter have little-to-no incentive to combat fake news. “While [Section 230] was intended to ensure platforms could offer a truly diverse, unfettered forum for public discourse relying on voluntary self-moderation, it has in practice meant that anything from lies about sitting politicians to death threats and myriad other forms of harmful content can be knowingly disseminated — and platforms are within their rights to leave the content up,” Dipayan Ghosh wrote for the Harvard Business Review last December.

Democrats, including Biden, have long criticized the current iteration of Section 230 for enabling the spread of misinformation. “Section 230 should be revoked, immediately should be revoked, number one,” Biden told the New York Times in January 2020. “It is propagating falsehoods [tech companies] know to be false ... There is no editorial impact at all on Facebook. None. None whatsoever. It’s irresponsible. It’s totally irresponsible.” Surprisingly, Trump and the Republican Party shared the view that Section 230 should be revoked, although their qualms pertained to the subjective censorship of conservative voices on social media.

Revoking or repealing Section 230 would be an ambitious move, and likely won’t happen anytime soon, according to Rachel Lerman of the Washington Post. Lerman wrote in January that a repeal might mean that companies, fearful of being sued, would tighten restrictions on what users can post; it might also stifle innovation and exacerbate the inequities between powerful companies with the resources to take on lawsuits and those without.

Lerman added that several tech giants like Facebook have responded to public pressure over their platforms’ role in spreading fake news by voicing support for reforming, rather than repealing, Section 230. Potential reforms could come in the form of requiring Internet and social media companies to take down user-generated content deemed defamatory by a court, according to Daphne Keller of the Stanford Cyber Policy Center. Some media reform advocates also propose allowing individuals to bring lawsuits against platforms if they are exploited on them; others suggest altering the wording of Section 230 to specify which activities count as protected speech and which can be more heavily regulated. For a more in depth look at proposed changes, check out this series of interviews by The Verge with media reform stakeholders.

A lot has happened since President Biden sharply criticized Section 230 in early 2020. The COVID-19 pandemic continues to dominate headlines and the new administration’s agenda, with Biden focusing much of his recent efforts on passing a third economic stimulus package. Just as with the issues of media consolidation and net neutrality, it’s not clear when or even if the government will move to regulate misinformation, whether through Section 230 or other means. One thing’s for sure: absent a seismic shift in the media landscape, fake news is here to stay.


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