Samuel Won

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Heralded by some as the “Magna Carta of Cyberspace,” and by others as the “Law that Ruined the Internet,” Section 230 of the Communications Decency Act provides online platforms civil immunity from a wide variety of unlawful and harmful activity conducted by the platform’s users, including the publishing of harmful and hateful content. From “Zoom bombing” and orchestrated rape to malicious catfishing and image-based sexual abuse, platforms like YouTube, Facebook, and Instagram enjoy the freedom to simultaneously ignore and enable these reprehensible realities. Thus, a reexamination of Section 230’s appropriateness is long overdue, and a working solution must be critically considered. One recent proposal to amend Section 230—the Reasonableness Standard Amendment—imposes a duty of care requirement on online platforms before they can enjoy Section 230’s immunity. The use of a “reasonableness” standard in the law is often a way to navigate between competing interests effectively, and this specific proposal provides a promising roadmap to a workable solution that recalibrates both the needs of platforms and the safety of their users. However, the proposal’s negative implications should be thoroughly considered and addressed in order to effectuate its goals without irreparably harming the internet.

This Note explores the Reasonableness Standard Amendment by comparing its benefits with some of its drawbacks before arguing that the Reasonableness Standard Amendment in its current form will lead to catastrophic consequences as a result of its inherent unpredictability. This Note attempts to mitigate this weakness by suggesting that the standard be pre-defined to some extent, thereby limiting the need for cost-prohibitive and lengthy litigation. In creating such pre-defined elements, this Note offers a framework and outlines important considerations in guiding the process of defining what is, or should be, reasonable by paying close attention to the type of claim and the type of medium involved in each case.

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