Senate Dems Introduce “Health Misinformation” Section 230 Carve-Out

The bill, if passed, would carve out a portion of Section 230 that would hold interactive computer services liable for algorithmic promotion of health misinformation and conspiracy theories.

HMA would only apply in situations where online misinformation related to an existing and ongoing public health emergency, per the mandate of the Department of Health and Human Services (HHS) secretary, would be further scrutinized.

The bill directs the secretary to issue regulations and informational guidelines on what constitutes health misinformation not protected by the third-party liability shield.

The draft bill would implement language like this:

“A provider of an interactive computer service shall be treated as the publisher or speaker of health misinformation that is created or developed through the interactive computer service during a covered period if the provider promotes that health misinformation through an algorithm used by the provider (or similar software functionality), except that this subparagraph shall not apply if that promotion occurs through a neutral mechanism, such as through the use of chronological functionality.”

According to a bill draft, the law’s enforcement wouldn’t apply in cases where a platform permits users to post in a neutral mechanism. These mechanisms would include a social media feed that ranks posts chronologically rather than algorithmically.

“For far too long, online platforms have not done enough to protect the health of Americans,” Klobuchar said in a statement provided by her office.

“These are some of the biggest, richest companies in the world and they must do more to prevent the spread of deadly vaccine misinformation. Earlier this year, I called on Facebook and Twitter to remove accounts that are responsible for producing the majority of misinformation about the coronavirus, but we need a long term solution. This legislation will hold online platforms accountable for the spread of health-related misinformation. The coronavirus pandemic has shown us how lethal misinformation can be and it is our responsibility to take action.”

Luján, in the same release, added that “lives are at stake.”

“Online platforms must stop the spread of deadly misinformation, and I’m proud to introduce this legislation with Senator Klobuchar to hold these companies accountable,” added Luján.

Section 230 proponent and TechDirt.com writer Mike Masnick was extremely critical of the proposal.

“First of all, in a “public health emergency” like we’re currently going through, what is and what is not “health misinformation” is not always clear, and involves constantly changing information,” Masnick observed. “Remember, we went through this with the whole “wearing masks” thing at the very beginning of the pandemic. Then, you had the WHO and CDC advise against wearing masks.”

He adds: “Even worse: imagine what kind of information might be declared “health misinformation” by disingenuous grandstanders? Pro-choice information? Information about transgender health?”

If passed, bill’s direct impact on the adult industry would likely be minimal, although there’s a hypothetical possibility of an adult platform being held liable for misinformation posted by a user. How will the HHS secretary handle COVID-19 themed fetish content, for instance?

Further chipping away at the limitations by Section 230 also continues a generalized trend of regulators and lawmakers narrowing those protections. Adopting this type of policy could increase the chances for Congress to making legislative changes to Section 230 that will directly impact the industry’s liability.