Document Type

Article

Publication Date

Fall 2020

Abstract

A proliferation of fake news has flooded U.S. websites and social media. From misinformation affecting the 2016 election to individuals making profits off of creating false stories, the United States desperately needs a legal response to the fake news crisis. However, U.S. law has effectively forestalled any attempts to bring fake news to heel. The First Amendment has been held to protect fake news. The Communications Decency Act, codified as Section 230, protects online platforms from the remaining potential sources of vicarious liability for fake news. Instead, gradually, self-regulation by websites has started to fill this void.

Proposed solutions have tried to look forward, suggesting revisions to the First Amendment and Communications Decency Act doctrine, or analyzing self-regulation by websites. However, these proposals have ignored an already existing model for regulating unwanted conduct online: the Digital Millennium Copyright Act. The Digital Millennium Copyright Act imposes certain obligations on online service providers to remove copyright infringing content posted on their websites in exchange for a liability safe harbor. While copyright and fake news are different, ten distinct principles can be elucidated from the Digital Millennium Copyright Act. These principles provide insights into how online regulations could advance, whether through websites’ own self-regulation, or in codified law if the First Amendment and § 230 regime is relaxed in the future.

Comments

Harvard Journal of Law & Technology (Harvard JOLT), Vol. 34, Issue 1 (Fall 2020), pp. 279-306

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