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NYLJ “Privacy or Property: Protecting Your Image Online”

By Steve Kramarsky & Jack Millson

If you have picked up a newspaper recently, you’ve probably read something about Section 230 of the Communications Decency Act. That once-obscure law has become a hot topic, and “Section 230” has entered the popular lexicon even though most people—even many lawyers—don’t know exactly what it does, how it works, or why it exists in the first place.

Because Section 230 involves the politically charged issue of regulating speech on the internet, descriptions of the law and its function can sometimes be colored by extrinsic factors that may or may not be relevant to the reader.

In simple terms, Section 230 protects internet companies from liability as the “publisher” or “speaker” of content posted by others on websites or applications they maintain, or for their good faith efforts to moderate or restrict content on their platforms.

That protection is subject to some very substantial exceptions and limitations (such as the exception carving out existing intellectual property laws), but broadly speaking Section 230 has become crucial to the operation of many of the world’s largest tech companies, including social media companies, search engines, and online content platforms.

But the internet has changed in ways that would have been hard to imagine in 1996, when Section 230 was passed. As the internet has become more diverse, Section 230’s protection has expanded, sometimes in unexpected contexts. For example, to online retailers like Amazon that less readily fit the traditional view of “content” businesses.

Recent years have seen increasing concern about the scope of Section 230, both from the tech companies who rely on it for their business model, and from those who feel the protection is too broad.

Predictably, this has led to widespread litigation involving Section 230, culminating in two cases argued last month before the United States Supreme Court.

Whatever the outcome of those cases, the legal landscape around Section 230 will likely remain complex, in part because of the way the law “carves out” existing state and federal laws to avoid conflicts in certain areas.

Courts faced with a Section 230 claim are often placed in the difficult situation of examining state statutes and common law principles that may be decades old, overlaying a federal statute passed in the early days of the internet, and applying them to a modern technological landscape that neither could have predicted.

This article first appeared in the New York Law Journal on March 20, 2023. Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, focuses on complex commercial and intellectual property litigation. Jack Millson is an associate at the firm.


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