Trump’s executive order may target blogs, recipe sites and forums
A new executive order from President Trump could affect all blogs, recipe sites, review sites, e-commerce sites and online forums that post user-generated content.
The executive order specifically mentions Facebook and Twitter.
But the scope of the command includes all websites that publish user-generated and moderated content.
According to the text published by the White House:
“Second. 7. Definition. For the purposes of this Order, the term “online platform” means any website or application that allows users to create and share content or participate in social networks, or any engine generalist research.
I asked Jeff Ferguson, assistant professor of digital marketing at UCLA and partner at Amplitude Digital (@AmplitudeAgency) on the scope of this decree and issued this opinion:
“The definition of an “online platform” as defined by the presidential decree is very broad and can encompass a blog, an online forum or even a recipe site that allows users to share recipes, in addition common examples of ‘social media’ that usually come to mind.
I agree with Jeff that the wording is very broad:
“…any website…that allows users to create and share content…”
Will the presidential decree change anything?
The Electronic Frontier Foundation (EFF) says an executive order cannot overwrite an act of Congress. It may be, but the executive order clears the way for the Federal Communications Commission (FCC) to enact the executive order.
There is a movement to abolish Section 230 of the Common Decency Act.
This executive order could give impetus to these efforts.
Section 230 of the Common Decency Act (CDA 230)
The goal of CDA 230 was to allow anyone to safely create a site that allowed users to create and share content without worrying about being sued for content posted by a user.
This lack of litigation has allowed the Internet to thrive and has fostered freedom of expression.
More importantly, sites were free to moderate their users and not be classified as publishers of that content, a designation that could open a site up to lawsuits.
According to the Electronic Frontier Foundation (EFF):
“CDA 230 also offers its legal shield to bloggers who act as intermediaries by hosting comments on their blogs. By law, bloggers are not responsible for comments left by readers, the work of guest bloggers, advice sent via email or information received via RSS feeds. This legal protection may still be valid even if a blogger is aware of the objectionable content or makes editorial judgments.
According to the executive order, a publisher who restricts “access to content that it considers to be ‘lewd, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable…’ may be subject to waiver of legal immunity. if it fails to provide adequate notice, reasoned explanation or opportunity for a hearing.
Here is the specific clause of the executive order:
“(ii) the conditions under which an action restricting access to or availability of the material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, in particular whether actions can be “taken in good faith” if they are:
… taken after failing to provide adequate notice, a reasoned explanation or a meaningful opportunity to be heard; »
The definition of what is “objectionable” may vary from site to site.
Many online forums ban discussions of religion and politics on the grounds that they are “objectionable” because such comments lead to divisions among forum members.
And what about a religious forum?
Does this mean that “objectionable” comments promoting an alternative religion cannot be restricted without giving the commenter adequate notice, a reasoned explanation, or a meaningful opportunity to be heard?
The EFF writes:
“Section 230 prohibits imposing publisher liability on a service provider for the performance of its editorial and self-regulatory functions. As the Fourth Circuit noted:
Legal actions to hold a service responsible for carrying out a publisher’s traditional editorial functions – such as deciding to publish, remove, postpone or edit content – are statute-barred.
The purpose of this legal immunity is not difficult to discern. Congress has recognized the threat that tort lawsuits pose to freedom of expression in the burgeoning new Internet medium. . . . Section 230 was enacted, in part, to maintain the robust nature of Internet communication.
Rather than increasing free speech, this executive order could do the opposite by removing the traditional litigation immunity granted to online forums, bloggers, and many other types of websites with user-generated content. .
Electronic Frontier Foundation:
Exercise of editorial functions
Section 230 of the Communications Decency Act
White House Executive Order