In the wake of Rev. Raphael Warnock’s defeat of U.S. Sen. Kelly Loeffler and Jon Ossoff’s lead over U.S. Sen. David Perdue in the Georgia runoff election, the U.S. Senate, like the White House and the U.S. House of Representatives, may soon be controlled by the Democratic Party. One-party control could open the door to federal legislative changes, including, possibly, the repeal or reworking of Section 230 of the Communications Decency Act.
The sports industry ought to carefully follow the trajectory of Section 230 debate.
As explained below, changes to Section 230 would require different sectors of the sports industry to re-evaluate their business operations. Media companies, blog owners and message board operators would all be impacted. So too would leagues and franchises that have contractual relationships with publishers of fan-written material.
Section 230 stems from a bipartisan bill signed into law by President Bill Clinton in 1996. It emerged in the early years of the Internet gaining popularity but long before the arrival of Facebook, Twitter and other high-traffic websites. Section 230 diminishes liability concerns for online publishers of user comments and material authored by third parties. It also empowers publishers to moderate user discourse. The law is intended to advance a Congressional finding from 1996: The Internet “offers a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”
To that end, Section 230 dictates that “providers of interactive computer services” aren’t legally classified as the “speaker” of user and third-party content. This means a user’s defamatory remarks posted on a website would ordinarily not create a legal risk for that website. Further, providers can’t be held liable for deleting or moderating user content that they, in good faith, find objectionable.
Section 230 is not without limits. It doesn’t provide immunity from other areas of law, such as federal copyright law or criminal law. Subsequent statutes have also chipped away at Section 230’s reach. For instance, the “Allow States and Victims to Fight Online Sex Trafficking Act of 2018” removes any immunity for publishers of sex trafficking services. Still, Section 230 is of great value to providers and their attorneys.
That raises the question: What is a “provider of an interactive computer service”? Over the last 25 years, this opaque phrase has been interpreted to include a wide range of online publishers. Search engines, social media platforms, message boards, blog companies and consumer review websites have all fallen within the definition.
Section 230 has attracted critical attention from a diverse set of individuals, for different reasons. While President Donald Trump is arguably Section 230’s most prominent critic, many influential Democrats—including President-elect Joe Biden and Speaker of the House Nancy Pelosi—have raised objections. Complaints tend to center on the ability of large tech companies to enjoy a legal exemption that eludes other businesses. Also drawing rebuke: websites that rely on political biases when regulating users’ comments and those that publish hate speech and dubious claims. Some in Congress, such as Sen. Josh Hawley (R-Mo.), demand a legal requirement for online publishers to be “neutral” when moderating comments. Trump, whose tweets about alleged election fraud now often carry a Twitter-imposed disclaimer, recently vetoed an annual defense bill partly on grounds that it lacked a Section 230 repeal (Congress subsequently overrode Trump’s veto).
A repeal or reform of Section 230 would spark immediate concerns for many websites, particularly those that rely on users rather than employees to create content, generate traffic and sell ads. User content could bring about lawsuits against publishers, who would be incentivized to stop moderating online comments or to remove forums and posting features altogether. Think of websites that host user reviews of hotels, restaurants or sneakers. Or social media sites like Twitter and Instagram that permit posts without review. Their business model is largely predicated on unedited and unreviewed user-generated content.
Members of the sports industry have stakes in Section 230. This is true of popular fan websites and sports blogs. It is also true of a social news website like Reddit, which features high-level user discourse on sports and many other topics. In a recent interview with Protocol, Reddit general counsel Benjamin Lee described the prospect of a Section 230 repeal as “pretty bad.” He highlighted the likely legal risks for moderation or editing of user content.
Depending on the nature of Section 230 reforms, sports industry companies that publish user comments to their stories could conceivably become liable for publishing and/or failing to delete defamatory comments. While many large media companies no longer allow reader comments—ESPN.com, for example, ended the practice in 2018—others, such as The Washington Post and The New York Times, still do with registered users.
Teams also have a stake in Section 230. They are all active on social media. Some also have official message boards. Section 230 both relieves them of liability for defamation-by-user and empowers them to moderate.
The Washington Football Team, for example, has an official message board, ExtremeSkins. The website is “owned by the Washington Football Team, maintained by Washington Football Team fans (not employees), and primarily devoted to Washington Football Team football.” Other teams are associated with message boards, such as RipCityTwo, the Portland Trail Blazers’ “official message board.” These boards are moderated for quality and appropriateness, but such an approach might carry legal risk in a world without Section 230.
With the changing of power in D.C., expect discussion of online reforms to pick up—and for the sports industry to be listening.