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?


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? – User37849012643 Apr 2 '19 at 7:38
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    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 '19 at 13:36
  • Could you address substantial censorship as well? – A. K. Apr 2 '19 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 '19 at 17:38
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    @StephanS Yes. If I have time, I'll track down some cases. The leading scholar on this issue is Eric Goldman and his very active blog is at blog.ericgoldman.org It is a good way to track down some examples yourself if you are so inclined, especially posts under the content regulation tag: blog.ericgoldman.org – ohwilleke Apr 3 '19 at 23:25

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

  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Sep 30 '19 at 4:01

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