Who Moderates the Moderators? Holding Online Platforms Accountable Without Destroying the Internet

Geoffrey A. Manne, March 1, 2023

The common law regularly enables both direct and collateral liability in order to put the incentive to avoid harm on the least cost avoider, even if that isn’t the person directly responsible for causing it. On the Internet, the common law was sidestepped by Section 230, which immunizes online platforms from liability for harm arising out of user-generated content. That immunity has necessarily enabled some harm to go undeterred. Nevertheless, defenders of the law often treat Section 230 with reverence, arguing that we would suffer greater harms to free speech if the law were repealed or amended. These claims invariably rest on a set of unproven assumptions. As this lecture explains, however, a more nuanced, law and economics approach reveals that some of those assumptions—regarding, for example, the social cost of increased litigation and the extent of harm to speech—may be mistaken. Curtailing collateral liability for online platforms may well be preferable, but that conclusion isn't nearly as well supported as commonly supposed.


Geoffrey A. Manne is the president and founder of the International Center for Law and Economics (ICLE), a nonprofit, nonpartisan research center based in Portland, Oregon. He is an expert in the economic analysis of law, focusing particularly on antitrust, consumer protection, telecom, IP, and technology regulation.