The scale of inflammatory, divisive, false and harmful online content has prompted much soul-searching about its sources, causes and possible responses. Not surprisingly, the immunity in section 230 of the Communication Decency Act (US) intended to empower intermediaries as moderators has come under intense scrutiny. Far from providing relief, the immunity appears to have turned platforms into a source of the problem, capitalising on it for their corporate profit. This project traces the provenance of section 230 and its judicial interpretation through a triptych of legal contexts: first, within the landscape of immunities as extraordinary legal devices routinely employed in support of ruling activity; second, within the conception of the corporation as a self-governing institution embedded in immunities and impunities; and, third, within a constitutional framework that settles not just the respective spheres of competence of government and platform, but delineates who counts as a governor in the first place. The overarching argument is that section 230 taps into the governing propensity of platforms not simply as intermediaries or gatekeepers, but as self-governing corporate actors with a long-standing history of sovereignty-sharing with government. This in turn explains and normalises their extraordinary “sovereign” role in cyberspace.

About the Speaker: Prof. Uta Kohl, Visiting Professor, CUHK LAW