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The Digital “Good Samaritan”

A stranger appears to help a stranded person in need.  The stranger has no motive or personal reward to gain from offering a helping hand, but nevertheless, the stranger steps in to rescue the day.  This person is the archetypal “Good Samaritan.”  As a matter of public policy, every state has enacted some sort of Good Samaritan law that protects these strangers from liability, if they act reasonably when helping. 

Good Samaritan protections have been extended into non-traditional circumstances, namely, to protect digital platforms like Facebook®, Twitter®, YouTube®, and Instagram® from civil liability for their actions.  The Communications Decency Act of 1996 (47 U.S.C. §230) provides protection for so-called Good Samaritans that block and screen of offensive material by digital platforms (information content providers or users).  Section 230 provides immunity from civil liability for providers that voluntarily remove or restrict content that the providers consider to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable whether or not such material is constitutionally protected.”  These providers may censor content lawfully based on their subjective beliefs, even if the U.S. Constitution would protect the speech.  The current code section provides robust censorship powers to information content providers.  Section 230 lags well behind technological advances and did not contemplate the online censorship occurring on the country’s ubiquitous social media sites. 

On September 21, 2020, Senate Bill 4632, known as the Online Content Policy Modernization Act, was introduced in the U.S. Senate, seeking in part, to amend Section 230.  Notably, the bill would replace Section 230’s subjective standard with an objective standard.  A provider would have to show that it “has an objectively reasonable belief” that the material fits the various categories outlined in the section.  Further, the bill removes the catch-all category of “or otherwise objectionable.”  The material would have to objectively fit into one of the enumerated categories.  The bill adds three new categories of potentially censorable material, including “promoting self-harm, promoting terrorism, or unlawful.”  If passed, a provider or user now would have to show that it has an objectively reasonable belief that the material is obscene, lewd, lascivious, filthy, excessively violent, harassing, that it promotes self-harm or terrorism, or that is unlawful in order for the provider to avoid potential civil liability. 

The power of information content providers to sway populations, influence elections, and change the course of history cannot be overstated.  Information technology is evolving at an unimaginable rate, and lawmakers must attempt to keep pace.  Senate Bill 4632 proposes to limit the scope of Good Samaritan protection under 47 U.S.C. §230.  Only time will tell what other policy changes may occur in the world of information technology.

Van Santos