The good samaritan is a law that enforces the obligation or give the right for internet service provider - ISP - or internet computer services - ICS- to publish the content of third party without expose itself to a penalty. Why that law !
The Section 230 of the Communications Act of 1934, enacted as part of the Communications Decency Act of 1996 - website of US Congress - provides limited federal immunity, the reasons are the 5 following :
1/ The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
2/ These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
3/ The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
4/ The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
5/ Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
I Examining the text and the context :
a/ The examining : The text talks about quickness and an advance in the availability of the information first, and it talks about also of the benefit over information control, of cultural diversity, the text evoke also, the flourished ICS, and to end, people can rely on (interactive) media.
I talked about the dominant position in previous document - Abuse of Dominant Position or the anomaly of the dominant Position : The same thing.
Congress decide that all benefit must give immunity to that ICS for the reason of progress, variety, control, quickness and availability. I think I point on the subject.
b/ The context : It appears in a battle between big companies for the control of internet. Google first says that it’s goal is to organize the web information (google) to make it accessible and useful. But i’s not the only firm that pursue that aim. others do it.
c/ Make the information or web accessible and useful : two barriers to entry on the web in fact. Why ? because if you don’t answers to criterium of that big companies, you rest on the side. That contradict the progress and create a new mortar (in talk about on the previous expression « click and mortar ») market in fact. But make the web or information accessible and useful go further because if you can’t access to the web for the same reasons I explained, there no diversity and no benefit for the US citizens and also the others citizens around the world. The fact show that five or more but few companies control the web : let us quote Google and youtube, Facebook and WhatsApp, Amazon, and X.
d/ benefit for who ? hihi, for citizens, in my opinion no. That 4 companies rely on Microsoft and Apple infrastructure (personal computer) and telecommunication provider to floor. They became five big monopolies who phagocytizes everything. Normally, a competition market suppose that exists a multitude of parties.But it’s not right to says that there is a competitive market, unless you get mud in your eyes, a competitive market between the 5 fives perhaps, not even, they share themselves the big market of the US internet and most widely the world market. So, it’s impossible to the little website to grow up quickly.
II Qualify the 4 companies :
FaceBook is in my opinion not provider of third parties but a classified ads website, the same for AirBnB. why because they don’t link furnisher with client really, they give the opportunity to the citizen to post an adds. Otherwise, all website are protected by the law, which is damaging. We will see further.
a/ I wrote in title : A policy misclassified. it’s exact. Why ? because it’s first a politic decision to strengthen that four companies more than defending the consumer. Qualify a situation, it’s very important, because, from the qualification, leads to consequences, severe consequences for consumers. Or, as always, it’s a practice of politics to lie to people to make accept the law. Here to lie is heard such as willful misclassification in benefit of that companies.
b/ case law of internet hosts : The other aspect of that law is the name given by observers : case law of internet hosts ; But that companies except telecommunication companies but there are not protected by that law, are not infrastructure companies, neither literally nor figuratively. An infrastructure company gives, hosts, lease or sell cables, servers and others systems that set and run the internet. So, that companies will argue that they have servers that host information of third parties bu my self I have a personal computer and I host my information that I share with others. That doesn't make me a host.
c/ Qualification or classification of that companies : The are simple companies that the must treat as the others company. the fact that the law break legality and equality in front of the all others companies of the web, it’s an mistake. A mistake that break the competitive market. We will see legally why further.
d/ The benefit of consumers : It’s restricted, thin but not various and not full. We will see further while the aim of competition rules are the benefit of consumers, without consumers - no markets -.
III case law of internet hosts application :
a/ Link between infrastructure host and information provider : one of the response of information provider is the impossibility to control and check all information of third parties. It’s a mistake of judgement because the same law section 230 d/ enforce that followings rules :
(d) « Obligations of interactive computer service A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections. »
If the law recognize the existence of measures such customer that parental control protections, in other words, a filter, the information providers are unwelcome to say it’s not possible to check and control third parties informations - parallelism of forms or even procedures -. It’s, in my opinion a bad will from enterprises to only work for the benefit of consumers, rather than a technical situation. In fact, the politic of companies are officially to benefit to consumers, but the facts are the building of conglomerate or oligopoly places. I met in the past and nowadays, strong and effective filter in entreprise or others structure. It’s, in my opinion, a question of will rather than technical process.
The words have mean, often various means, but a web hoster, is an infrastructure company that suffer the comparison with information provider that provides third parties information. Here, we have a no material goods or intellectual services (images, videos, audios etc.) against, and I say against material goods (server with host capacity, cable). So, thy argue, we have our proper server then we are host. It’s melted the two sectors or sections of their activities, first activity : owned their infrastructure and host and in second section or activity, propose and manage the information, that the parental filter promote, they don’t host in that case but manage, organize etc. the information in benefit so-called of consumers, or clients.Do not confuse container and content to conclude.
b/ Consumer action against information provider : The first great consequence of that law is the denial for consumers to take legal action. It’s not harmless to note that law is the fact of government not of supreme court. The judges are independent, not the government subject to lobbying. The second consequence is the denial of the right to consumer to take legal action against the third party throughout the information provider. Such legal action takes place or born with the damage caused by the third party. The having cause, the consumer, hold a right to take action because, the third party is the obliged of the information provider, himself the obliged. By transition or transitivity or even translation, the consumer hold well an a legal action that can suffer of exception. The Constitution makes up the “Bill of Rights,” which protect individual liberties. The right to legal action takes sources with constitution - act - with :
1/ the First Amendment prohibits Congress from making laws that abridge freedom of speech. freedom of speech in front of, for instance, a judge for its case ;
2/ the sixth Amendment with the right to be heard by a judge (in fact a jury)
etc.
Finally, the constitution establish judicial system. If the right to legal action is not a constitutional right, then the constitutional judicial system has no cause.
In my opinion a law such Communication Act mustn’t narrow the right to the citizens to assert one's rights especially, when the constitution, or rather the preamble, says and promote de establish Justice, promote the general Welfare. No legal action no justice wanted by the constitution. it’s like 1 + 1 = 2.
c/ Measures : If a consumer argues the third party - of a ICS - damages its legal heritage, its property right in other words, the law can not prohibits legal action from Communication Act because the U.S. Constitution does so through the Fifth and Fourteenth Amendments' Due Process Clauses, which prohibit governments from taking private property without due process of law, and, more directly, through the Fifth Amendment's Takings Clause: “nor shall private property be taken for public use without just compensation. In my opinion the Communication Act - section 230 is illegal and anti constitutional for all that reasons.
d/ To conclude : we have seen different ways to approach section 230, we like or dislike that approach but it has the merit to point out the interest conflict between government that 4 companies damaging the consumer sphere.
IV Feed Back :
As we can see, that section 230 protected, certainly, the four big companies and others but recently, supreme court rejected the legal action of a plaintiff with the reason the existence of section 230. That is to say, it's impossible facing a damage to recover its right, property, or any part of all its legal domain (intellectual domain or property etc. ).
Author :
Vidal Bravo - Jandia Miguel
Master II in Consumer Law and Competition Law, Montpellier I
Panthéon - Assas