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Platforms such as social media sites are protected under Section 230 of the Communications Decency Act, this allows platforms to avoid liability for most content posted by its users.

Publishers, on the other hand, do not share the same type of protection that platforms have against things like slander and defamation because they choose to maintain the ability to edit or remove the content shown on their site at any time.

Can a platform curate the content on its site to the point where it is legally considered a publisher and loses protection under section 230?

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Yes. Content not created by a user is not protected by Section 230, and if the platform agents or employees begin to substantively edit content, the platform becomes a co-author rather than merely a platform for that content.

  • Is it an arbitrary number decided by the court, or is there a legal percentage of curation separating the two? – StephanS Apr 2 at 7:38
  • It is a case by case determination made by the trier of fact (the jury if there is one and otherwise the judge), based upon the facts presented and very general legal rules. There is a huge gray area and very little solid ground of clarity. – ohwilleke Apr 2 at 13:36
  • Could you address substantial censorship as well? – A. K. Apr 2 at 16:42
  • @A.K. No. Brain too tired today to think that one through clearly enough to give a succinct answer. – ohwilleke Apr 2 at 17:38
  • @ohwilleke Is there a case law history to your claim that a platform can change its legal status from platform to publisher. – StephanS Apr 3 at 9:59
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Can a platform curate the content on its site to the point where it is legally considered a publisher and loses protection under section 230?

Curating the content, as in displaying it in a certain form or deleting it, is not what differentiates publishers and platforms.

Two things can make a platform a publisher:

  1. Editing content in certain ways convey a message.
  2. Adding to content in a way that conveys a message.

Courts have held that Section 230 prevents you from being held liable even if you exercise the usual prerogative of publishers to edit the material you publish. You may also delete entire posts. However, you may still be held responsible for information you provide in commentary or through editing. For example, if you edit the statement, "Fred is not a criminal" to remove the word "not," a court might find that you have sufficiently contributed to the content to take it as your own. Likewise, if you link to an article, but provide a defamatory comment with the link, you may not qualify for the immunity. https://www.eff.org/issues/bloggers/legal/liability/230

If you edit content in a way that makes it defamatory or add defamatory language or content the platform can be liable as a publisher.

I saw that you asked for specific cases in comments, so here is a list. https://www.eff.org/issues/cda230/legal

  • If platforms can edit the content of things posted on their websites and still maintain protections under section 230, then what's stopping a site like The New York Times from claiming the same protections? It seems like being a platform holds more protections than a publisher, and if platforms can edit content, why aren't more publisher seeking to file as platforms? – StephanS Apr 17 at 20:40
  • You can't always edit the content and still be protected. The New York Times does have the same protections. The articles they write are not posted by users, they come from the Times itself. – Putvi Apr 17 at 20:42
  • I think your comment contradicts your answer, or your answer is very confusing. – StephanS Apr 18 at 19:08
  • What? In what way? – Putvi Apr 18 at 19:12
  • What is the underlying thesis of your answer? – StephanS Apr 18 at 20:35

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