Programmed Defamation: Applying § 230 of the Communications Decency Act to Recommendation Systems

By Michael R. Bartels

Section 230 of the Communications Decency Act was originally intended to promote online innovation for the good faith moderation of interactive computer services. Since Congress enacted the statute, innovators, flourishing under statutory immunity, have been able to master the technological frontier, with most web traffic now consumed through highly curated and specialized feeds resembling a personal newspaper. The resulting free market of information is stronger than at any point in human history.

The new technological regime, however, has created another problem. Most of the content shared on these platforms originates from third parties, often anonymous or judgment-proof. Section 230, meanwhile, protects social media sites from liability as the publishers or speakers of such information. Although the websites develop the content by displaying it to others, they are generally not considered responsible for what comes from a third party. In this regime, defamation spreads quickly and easily, and plaintiffs have little legal recourse for relief.

This Note contends that social media sites’ increasingly frequent use of recommendation algorithms to sort content for users should not be afforded § 230 immunity against liability. The creation of a recommendation feed, this Note argues, should be treated as a second creation point for which the interactive computer service should be held entirely responsible. This Note also contends that such a result may be achieved through judicial application of § 230 to the recommendation feeds as their own products, rather than amending the statute. Accordingly, this Note further contends that the allowance of liability against such systems could drive technological innovation toward addressing the dangers of online defamation and assign responsibility for the content on one’s platform.