Code & Conduit Podcast: Website Liability 2018 Outlook


The increasing pressure on social media companies to police content on their websites might get heavier in 2018.

Legislation moving through the Senate and House (H.R. 1865, S. 1693) would impact how internet publishers that allow users to post content, such as Facebook Inc. and Yelp Inc., need to patrol their sites for posts that promote sex trafficking or prostitution.

Tech companies and their trade organizations agree with the intent of the bills, introduced by Rep. Ann Wagner (R-Mo.) and Sen. Rob Portman (R-Ohio), but are worried that a final bill’s language could have the side effect of stifling how they operate, Bloomberg Law tech and telecom reporter Alexis Kramer said in a recent Code & Conduit podcast episode.

“The way that lawmakers are proposing to combat the issue, they argue, would hurt a crucial protection that underlies their business model,” Kramer said.

The bills would amend Section 230 of the Communications Decency Act of 1996, which says websites aren’t liable for content posted by third-party users. The law has allowed social media, advertising, and review sites to thrive, she said. But it has also shielded some companies, like classified ad website LLC, from allegations of enabling sex trafficking activity among users.

The battle has come down to tweaks in the bipartisan bill’s legal language. Tech companies are trying to minimize their liability if they discover these illegal activities while making good faith efforts to purge their platforms of such content, Kramer said.

But public advocacy groups and sex trafficking victims say it no longer addresses what they see as the heart of the issue: the immunity given to websites in the 21-year old communications law.

A new version of the House bill now makes it a crime for websites to intentionally promote prostitution, a change supported by tech trade groups.

Meanwhile, the Senate version still lacks support from some startup and tech advocacy groups, despite changes to the original bill.

The differences between the House and Senate versions mean even if both cleared their respective chambers, more changes to the bill are inevitable before it could become law.

You can read more reporting about social media and website liability on our tech, telecom and internet blog or on Bloomberg Law. If you liked what you heard in the podcast, sign up for a free trial of Bloomberg BNA’s legal and regulatory news and content.

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