[wahern]

HN already has moderators who do a very good job of filtering posts in a timely manner. HN's exposure to liability for libel would be rather minimal. People and companies are exposed to legal risk all the time, everywhere they go, and somehow they don't curl up into a ball and die of starvation in their basements.

Big, diverse sites like Facebook and Twitter need Section 230 because they can't effectively use human moderators to sift through the content. They have to rely on machine learning, which has false negative rates magnitudes higher than a human. Yet at the same time, they're constantly trying to shape and edit and, basically, narrate the user content, as part of their monetization strategy. That's their dilemma.

Moreover, the distinction between publisher and distributor will still exist. The alternative to strong moderation is no moderation--you're just a distributor, like a Usenet node or the telephone company. But that's more difficult to monetize. (Of course, the legal landscape would be more nuanced than that--traditional libel law wouldn't demand a simple dichotomy between moderation and no moderation.)

Without Section 230 companies would have a more difficult time trading profit potential for legal liability, but it would still be done. Newspapers, write-in columns, bulletin boards, and other forums were around for centuries, all the same exposed to libel law. Even the internet was around for decades prior to Section 230.

[eli]

> HN's exposure to liability for libel would be rather minimal.

I don't understand how you reached that conclusion. They could be sued over any comment that appears for any amount of time. There are definitely comments that have appeared on HN that are libelous.

Moreover even if they pre-screened every comment before it was posted with a team of lawyers who never make any mistakes, they'd STILL have to worry about defending against frivolous lawsuits. Would it even be possible to buy liability insurance for a forum in this world? It would cost a fortune.

And this is for a site that has the resources to have full time moderators. Smaller sites are even worse off.

I don't see how anyone could practically operate any forum or discussion board or comments section that allowed people to post messages in real time.

>Even the internet was around for decades prior to Section 230.

Sure and sometimes your ISP got successfully sued because someone didn't like a comment posted on a message board they hosted.

[nullc]

> have appeared on HN that are libelous

Not just have appeared, but which are still on display.

Sometimes the difference between libellous and a critical statement protecting the public is purely the difference of the statement being true or not.

This is not something a moderator is necessarily in a position to be able to judge but it's critically important to a community that its members can communicate true negative facts about other members.

[curryst]

> Sometimes the difference between libellous and a critical statement protecting the public is purely the difference of the statement being true or not.

Or whether the person making the statement knew that it was false at the time (or should have known). That won't protect the statement from being libelous, but it limits your maximum liability to actual damages that you can show (which in many cases is only going to be the lawyer fees; in the case of a widely repeated libelous statements, how do you determine what harm came from which sites?).

> This is not something a moderator is necessarily in a position to be able to judge

I would make that a harder statement. Moderators cannot tell whether a certain post is libelous. Even assuming that the moderator knows whether the post is factually true or not (and there are a lot of accusations where, when they come out, no one knows for sure who is telling the truth), whether it's libelous depends on whether the person in question is considered a public figure, and whether the person that posted it did enough fact checking to be deemed sufficient in attempting to prove or disprove it. The only person that can determine whether the person being defamed is a public figure, and whether the burden to verify the facts was met, is a judge with jurisdiction over the case. Anything else is just people guessing at how a judge would interpret this case, which is fraught with problems, including and up to that two judges who have jurisdiction would disagree on some facet of that.

[eli]

Worse yet: sometimes the difference is just who happens to be on your jury that day!

[wahern]

> They could be sued over any comment that appears for any amount of time. There are definitely comments that have appeared on HN that are libelous.

1) You could be sued now for [potentially] libelous comments you write on HN. What's the average wealth of HN posters? How many times has HN had to field user account disclosure requests so commenters could be sued?

2) There are scenarios where HN could be sued now for [potentially] libelous material. For example, in the way moderators reword titles. Not sure how likely they would be to succeed, but it's certainly plausible, and it would be relatively cheap for a lawyer to test the waters. I'd be curious to see how many letters Y Combinator has had to field regarding its content. I suspect greater than 0, but still relatively few. Do its lawyers toss them in the trash, discounting to $0 the risk of liability? I doubt it--while they may consider the risk low, it's still something, and that something presumably effects HN's policies today.

A few months ago I learned a memorable phrase from an HN comment: think in probabilities, not possibilities. Regarding Section 230, most people seem to be in a mode of thinking where they simply compare a world with existentially oppressive liability vs no liability whatsoever. The world doesn't work that way, not even U.S. law. We're all subject to the possibility of financially existential liability every time we drive a car, but we're not crippled by it. How many Silicon Valley engineers with million-plus dollar homes and assets even have umbrella coverage? While I suspect the number is far fewer than what would be rationally called for, the reason is nonetheless because the probabilities are far less ominous than the possibilities.

Would HN's liability exposure grow? Absolutely. Would their legal costs, including possible settlements, increase? I would think. How would the site change? It's hard to say, but I'll go on record as saying that I don't think it'd be taken down, and I seriously doubt there would be many, if any, substantive changes to current policies and practices.

> Sure and sometimes your ISP got successfully sued because someone didn't like a comment posted on a message board they hosted.

To be clear, my only claim is that I don't think it would be the end of the internet or even social media. It might be the end of Twitter and Facebook as we know it, but the U.S. grants to participatory websites one of the, if not the strongest defenses to libel liability in the developed world, and yet the internet works much the same everywhere else lacking such a strict defense. Likewise, many people consider civil tort liability entrepreneurially oppressive in the U.S., and yet private enterprise--grocery stores, manufacturers, schools, etc--exist much the same here as they do elsewhere, especially in other developed countries. In fact, often they willfully subject themselves to more risk than they would elsewhere. (That's one benefit of a system that relies on private suits as opposed to regulatory mandates or criminal sanctions.) And yet the worst figures I've seen for the supposed comparative cost to the immensely successful U.S. economy of it's overly litigious civil legal system is something like 5% of GDP.

There's alot of hyperbole and hand-wringing surrounding this issue, and a big reason, IMO, for it relates to our contemporary, radical narratives regarding Free Speech on the one hand and American litigiousness on the other. While anxiety regarding both may be rooted in a kernel of truth, the full truth and reality--legal, political, social--doesn't support the extreme reactions and doomsday predictions.

While I'm not advocating for repeal of Section 230, I'd trade it in a heartbeat for legislative voiding of Qualified Immunity, if that sort of compromise was on the table between Democrats and Republicans. That's the sort of flexible, pragmatic thinking I wish there was more of in our public discourse. But it can't happen if we're all single-issue voters on every issue, which is what absolutist, possibility-not-probability thinking has turned us into.

[NationalPark]

We won't know the actual exposure until it ends up in the courts. Remember, we're talking about removing the good faith liability protections. Maybe a few thousand views of a libelous comment is enough, even if it was eventually removed. Either way, someone has to hire lawyers to go defend this, so it's not free.

We should also expect new bad actors to take advantage of this. As long as they can spam libel faster than moderators can delete it, they can force the site to shut down or risk the lawsuits. While I'm sure YC has its share of enemies deserved or not, even perfectly innocent people are attacked online every day for no reason at all.

[gowld]

There's no reason to assume that an operator would be liable for libel spam, since they lack mens rea intent. Libel would only be in play if they intentionally refused to take down content or tried to extort people with it.