One of the challenges of working in an industry primarily based on the internet is that you’re stuck dealing with various internet regulations that could either help or hinder your business.
Like social media networks and e-commerce platforms, adult entertainment industry firms based on the internet rely on particular protections and laws to actively operate in the U.S. market – the largest consumer market for online pornography worldwide. At Adult Site Broker, we try our best to stay up to date with all of the political and legal trends that impact the adult entertainment industry on an international scale. However, as is the case for other industries, the United States happens to set the docket when it comes to regulation for companies that operate in this industry.
Section 230 of the Communications Decency Act of 1996 is one such law. We’ve written about this law in the past. We provided those links at the end of this blog post. Section 230 is considered by its proponents as the “First Amendment of the internet.” This is because the law is structured to immunize interactive web platforms from the liability of third-party users who may use an internet platform for potentially illegal activity. In English, this law grants companies like MindGeek, Meta, or Twitter the ability to adopt self-regulation policies that justify a platform’s content moderation policies to ensure that illegal content or content that violates terms and services contracts is not on the applicable platforms. And, if such content appears on self-regulated platforms, the owners of these websites aren’t necessarily liable for the content shared or its origin. For instance, if a user posts child abuse sexual material (CSAM) to an adult tube site like Pornhub, MindGeek (Pornhub’s parent company) is entirely within its rights to remove the CSAM content, ban the user’s account, and report the crime to state and federal law enforcement agencies through NGOs like the Association of Sites Advocating for Child Protection (ASACP) or the National Center on Missing and Exploited Children.
But, there is significant hyperpartisan controversy associated with Section 230. Critics in both the Republican and Democratic parties believe that the law allows social media networks to control the national and international political discourse. GOP critics of the law maintain that Section 230 of the Communications Decency Act allows technology companies, like Twitter, to censor the content posted by users who hold conservative or right-wing viewpoints that could clash with the left-leaning corporate cultures of these firms and the terms and conditions these platforms do have in place. Democrats believe that Section 230 encourages large social media and technology companies to promote misinformation, disinformation, and potentially extremist content on the platforms because it is profitable. Leading politicians on both sides, including President Joe Biden and former President Donald Trump, have reasons to oppose Section 230. However, the web law is crucial to protecting free expression, including consensual pornography, on the internet. That’s why it is essential in this blog post to discuss the latest challenge to the law that the United States Supreme Court heard in February 2023. Without rehashing old news, we’ve analyzed this case before the high court. Suffice it to say, we have thoughts to share.
For those living under a rock or from outside the United States, the Supreme Court heard oral arguments in the case of Gonzalez v. Google. Our friends at YNOT.com have followed this court case extensively. The family of Nohemi Gonzalez brought a legal challenge against Section 230 of the Communications Decency Act of 1996, claiming that Google-owned YouTube is partly liable for her death. An American college student on foreign exchange in France, Nohemi Gonzalez, was killed in 2015 during the Paris terror attacks carried out by the radical terror group Islamic State.
The Gonzalez family petitioners claim that Section 230’s safe harbor provisions don’t protect content recommendation algorithms used on websites like YouTube. This is because, according to the petitioners, the recommendation algorithms could place a website like YouTube in the role of a publisher rather than a platform. As described above, Section 230 grants immunity from third-party users who act as third-party web content publishers. However, if a website like YouTube is viewed as the publisher or an entity that conducts some of the functions of a publisher, then the platform could be viewed as a liable party for circulating extremist and terrorist propaganda. A definition of Section 230 safe harbor provision in this format could be potentially very damaging in the long run.
You see, the Gonzalez petitioners wish to define Section 230 so narrowly that such an act could completely ruin freedom of expression on the internet in the United States. This applies to online adult platforms because, as stated above, Section 230 allows platforms to self-regulate and remove potentially offensive or illegal content. And, rather than holding the web platforms liable for the actions of a select few, the law specifies the perpetrators. Unfortunately, Section 230 saw a gutting of this sentiment with the adoption of FOSTA-SESTA, a Trump-era anti-sex trafficking law, that has done nothing to fight human trafficking and has stifled forms of expression that the First Amendment of the U.S. Constitution protects. Luckily, the nine Supreme Court justices expressed that they needed clarification on the law and clarification about redefining the scope of Section 230 with the input of the most critical governmental body for this matter: Congress. Brett Kavanaugh, a conservative justice on the Supreme Court, was the surprising voice of reason during oral arguments on the case in February 2023. He asked: “Isn’t it better…put the burden on Congress to change [Section 230]?”
Kavanaugh aligned himself with Elena Kagan, a liberal justice on the Supreme Court, who sided with a simple majority of the justices that said that the high court is probably not the best place to decide on a measure that could irreparably harm the digital economy and free speech on the web. As an indication of this position, Kagan said they are simply a court. “We really don’t know about these things. [We] are not the nine greatest experts on the internet,” Justice Kagan admitted.
These observations are important to us. Why? Let’s unpack this briefly. Just in admission, justices of the high court admitted that they had absolutely no idea what to do in the Gonalzez case. This benefits the digital economy lobby, including the online adult entertainment industry, who should educate the high court and Congress on the potential implications of redefining or repealing Section 230. The Supreme Court has yet to deliver a final decision, but it’s our guess that the debate to retain, redefine, or repeal Section 230 will be decided in the halls of Congress. This allows us to lobby to favor an equitable policy that protects Section 230 and online sex workers.
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