PLATFORM IMMUNITY REDEFINED.

• Author: Mcpeak, Agnieszka

TABLE OF CONTENTS INTRODUCTION 1560 I. THE CURRENT SECTION 230 FRAMEWORK 1565 A. Overview of Section 230 1570 1. Key Cases Interpreting Section 230 1574 2. Legislative Reform Proposals 1579 B. Scholarly Critiques of Section 230 1581 II. REDEFINING PLATFORM IMMUNITY USING JOINT 1584 ENTERPRISE THEORY A. Joint Enterprise Liability Generally 1585 B. Moving Away from the Binary Classification 1590 or "Provider", of "Service" 1. The Range of Modern Platforms 1590 a. Sharing Economy Platforms 1594 b. Online Marketplaces 1603 C. Platfrom as Joint Enterprise 1610 CONCLUSION 1612 INTRODUCTION

Internet platforms are largely immune from liability arising out of the content they allow third parties to create or share on their platforms. The source of this immunity is section 230 of the Communications Decency Act (CDA), (1) a 1996 law that is vitally important but at times too broad. To begin, consider this tale of two platforms.

In 1995, Craig Newmark set out to create an internet platform for listing events, jobs, apartments, and other information for local communities seeking to connect with each other. (2) His website, Craigslist.org. initially focused on listing events in the San Francisco Bay Area but eventually expanded its content to include housing, jobs, and even goods available for sale. (3) Although Craigslist started as a noncommercial, nonprofit site. (4) by 1999, it was operating as a private, for-profit business with full-time employees. (5) It expanded into other cities and, to make revenue, began charging for some job postings. (6) While successful and profitable, Craiglist has avoided banner ads, subscription fees, and other sources of online revenue. (7)

In 2009. Travis Kalanick co-founded UberCab in San Francisco/The business concept was somewhat simple: users seeking a ride could click a button on their smartphones, and a car would appear. (9) The vision was for UberCab to be "everyone's private driver" (10)--a much-needed improvement to the highly regulated and entrenched transportation industry." By 2010, Uber started a new genre of transportation services in a tech-enabled modern sharing economy. (12) Sometimes called "transportation network companies," platforms such as Uber rely on mobile technology to connect individuals to each other for the purpose of offering "ridesharing services" to the public. (13) But Uber is not merely a forum for connecting riders with drivers. It exerts considerable control over transactions that happen on its platform. For example, in most locations Uber is entirely cashless; (14) the company collects payment from riders directly and later pays its drivers a portion of the fares. (11) Uber sets and enforces its own prices, (16) requires drivers to meet certain safety requirements, (17) and sets terms and conditions for riders. (18)

Both Craigslist and Uber are internet-based businesses relying on web-enabled connections among individual users."' And both attempt to shield themselves from liability for claims arising out of third-party activity on their platforms. (20) Section 230 states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." (21) An "interactive computer service," essentially defined as the entity that provides or enables access to a computer network, (22) is immune from liability. (23) By contrast, no immunity attaches for the "information content provider." (24) that is, the "entity that is responsible, in whole or in part, for the creation or development of [online] information." (25)

Under section 230's binary classification of "computer service" and "content provider," Craigslist and Uber may both appear to fit the "computer service" category. After all, Craiglist's forum enables access to a network of listings, and Uber connects drivers and riders via its own network. But the core economic activity and business model of each platform vary considerably. Uber purports to screen members of its network; (21)' Craigslist does not. Moreover, Uber takes a cut of every transaction on its platform. (27) While Craigslist charges fees "for job postings." (28) it does not set prices for the goods and services available on its platform the way that Uber does. (29) These two platforms fundamentally differ in (1) how they operate, (2) the degree of control they exert over transactions, and (3) the way they profit from their users. Quite simply. Craigslist provides a forum for user-enabled exchanges (and likely deserves broad immunity) while Uber operates more like a joint enterprise with its drivers (and should not get the same broad immunity).

These two platforms illustrate the need for a more nuanced analysis of a platform's underlying economic activity for the purposes of determining section 230 immunity. Uber and other sharing economy platforms--along with online marketplaces such as Amazon--challenge the bounds of section 230. While it is important to protect intermediaries from most liability arising out of third-party speech and allow them to moderate content, (30) section 230 has gone too far in insulating platforms that actively engage in something resembling a joint enterprise with third parties. This Article thus proposes that one limit on section 230 immunity should be based on the nature of the economic relationship between the platform and third parties.

This reform is necessary because modern platforms have multiple functions and at times engage in hands-on, for-profit relationships with users that resemble joint enterprises. (31) As actors who control and profit from transactions, these platforms should bear some of the cost of harms that flow from their activities. (32) By looking at whether the platform is engaging in a joint enterprise with a user, the law can rein in overly expansive applications of platform immunity and permit some remedies to tort victims. At the same time, this approach can promote stability and clarity at a time when platform immunity is being threatened by sweeping reforms. (34)

This Article proceeds as follows. Part I examines the development of platform immunity over time and the current section 230 framework. It explores how immunity for internet platforms emerged due to the practical and normative concerns of imposing traditional publisher liability on internet companies and how courts have interpreted section 230 over time. Further, it provides an overview of legislative reform proposals and academic literature supporting and critiquing section 230.

Part II proposes redefining platform immunity using joint enterprise liability theory in tort law. It begins by explaining joint enterprise theory generally. It then critiques section 230's binary classification of "interactive computer services" and "information content providers' as insufficient for capturing the range of activities in which modern platforms now engage. Part II then examines how sharing economy platforms and online marketplaces in particular do not fit neatly within section 230's current framework.

Part II acknowledges that platform immunity under section 230 is appropriate for insulating many online intermediaries from claims based on third-party content, but it suggests also examining the economic relationship between the platform and the third-party content creator to determine the parameters of immunity. Drawing on joint enterprise liability in tort law. Part II thus concludes by arguing that section 230 immunity is inappropriate for platforms that have a common business purpose with the third party, share a specific pecuniary interest with the third party, and possess an equal voice or right of control. This approach reconciles a key purpose behind section 230--insulating online intermediaries from liability as "speakers" or "publishers" of third-party content' (35)--with the current reality of the modern platform-based economy. Quite simply, online intermediaries now take many forms, and platforms that engage in joint enterprises with third parties should not be entitled to broad immunity.

1. THE CURRENT SECTION 230 FRAMEWORK

   In the 1990s, when the internet was emerging as a personal tool for communication and commerce, policymakers foresaw the threat of innovation-crushing civil liability. (36) Traditional tort law imposes liabilityon publishers for the content they choose to publish." Thus, poor editorial choices that result in harm to others may give rise to civil liability. " (s) Even distributors can face tort liability if they knowingly distribute defamatory content.' (39) An internet computer service, on the other hand, is different in both nature and scope. (40) At the time section 230 was passed, burgeoning new internet companies were not intending to supplant newspaper publishers or function as distributors but. instead, were programming software and developing high-tech tools to allow the "Cyber Age" to explode. (41) The internet they were building had the potential to democratize communication by giving individual users more freedom to interact with each other directly through online forums. (42) Some internet platforms established norms for online conduct while others did not. (43) Either way, platforms served primarily as intermediaries, not as traditional editors or even newsstands. (44) Thus, policymakers in the 1990s recognized the threat that liability posed to the growth and promise of the internet and enacted section 230 of the Communications Decency Act in 1996. (46)

   By passing section 230. Congress sought to prevent state and federal laws from over-regulating the internet. In 1996, as the "DotCom" industry flourished, (4)' concerns arose about the stifling effect of broad civil liability on the internet's growth." (48) Lawmakers worried that civil lawsuits could extinguish the internet as a forum for free expression, particularly in its infancy. (49) One of the primary functions of...