Creating a Public Health Disinformation Exception to CDA Section 230

The “infodemic” of fake news about the COVID-19 virus contains a large number of dangerous postings that fall outside of First Amendment protected speech, such as the promotion and sale of potentially deadly bogus cures. We argue that Congress should amend the Communications Decency Act (CDA) Section 230 to recognize a notice-and-takedown exception for dangerous false scientific and health information causing specific harm. By arming the direct victims of false health information with a takedown procedure and money damages to redress harm, private attorneys general will supplement public enforcement by eliminating harmful content that is devoid of First Amendment protection. The proposed notice and takedown regime for illegal content would bring U.S. law into greater harmony with that of the European Union and is likely to evolve into a global standard for false public health information. Our reform can be extended to disable other illegal content on websites, blogs, and social media that are currently shielded by CDA Section 230. Carnegie-Mellon researchers who studied “more than 200 million tweets discussing coronavirus or COVID-19” concluded that 82% of the fifty most influential retweeters were “bots,” many of which were tied to foreign agents in Russia or China. Protecting the First Amendment rights of bots disguised as humans to weaken U.S. public health is certainly not what Congress had in mind when they enacted CDA Section 230 in 1996. Part I of this Article is an overview of viral public health disinformation epidemics spread through social media. The earliest social media enabled public health infodemic was the Ebola outbreak in Africa from 2013-2016. In 2017-18, an online anti-vaccination movement enabled senseless measles outbreaks in dozens of nations. Psychological research shows that social media has a unique ability to spread harmful disinformation because many people choose to believe emotionally satisfying false information over credentialed experts, particularly when the social media messages appear to come from a friend, a peer, or a covert whistle-blower. In many cases, fabricated social media posts are driven by profit motives, rather than a desire to educate, debate or drive conversation. Part II is a history of CDA Section 230, which has evolved into a liability shield against any website operator responsibility for third party postings, even if the content constitutes ongoing torts or crimes. Originally, this liability shield was restricted to publisher’s liability for defamation, but federal courts have extended CDA Section 230 to every imaginable tort action. Over the past quarter century, U.S. courts have stretched CDA Section 230’s immunity to incorporate social networks, websites, and other Internet intermediaries. Under this expansive interpretation of the liability shield, websites have no duty to remove illegal third party content, even if the postings are intended to cause specific harm and do not constitute free expression under the First Amendment. No other country immunizes website operators for illegal content posted by third parties on social media or other websites. Part III presents the mechanics underlying our proposed CDA Section 230 notice-and-takedown reform that will enable government regulators and direct victims who relied upon dangerously false online public health information to order websites to disable the harmful content. Our primary emphasis is on reforming CDA Section 230 to permit tort lawsuits against websites that host or post false public health information that poses a risk to Internet users. Congress may choose to broaden our CDA Section 230 notice-and-takedown proposal to content inciting terrorism, revenge pornography, child pornography, secret videos of persons undressing, maliciously false dating profiles, and other deplorable content not protected by the First Amendment. Our CDA Section 230 reform will be a significant step toward harmonizing U.S. law with the European Union’s Directive on Electronic Commerce, which will shortly be updated by the Digital Services Act. As with the current E-Commerce Directive, website operators will have no obligation to affirmatively monitor for illegal content on their service but will need to expeditiously disable dangerous postings upon notice. To date, there has been little recognition or study of the role of CDA section 230 in enabling systematic public health disinformation. This issue will lie dormant no longer; it urgently demands Congressional attention.