Towards a regulatory theory of platform rule: corporate "sovereignty" through immunities

Abstract

The scale of inflammatory, divisive, false and harmful online content has prompted much soul-searching about its sources, causes and possible responses. This has brought the sweeping immunity in section 230 of the Communication Decency Act (intended to empower platforms as moderators) under intense scrutiny. Far from providing relief, it appears to have turned platforms into a source of the problem. This Article offers a fresh take on section 230, which is - despite its apparent commonplaceness - shown to be an extraordinary legal intervention as it gives important actors, otherwise key to controlling a space, a “carte blanche immunity for wrongful conduct.” That extraordinariness requires an explanation going beyond standard arguments about giving young internet companies some “breathing space” or removing disincentives for content moderation. The discussion starts with the proposition that an immunity entails self-governance, not as a matter of cause and effect, but in purely analytical term being immune means to self-govern within the scope of the immunity, that is to act without legal accountability. Building on the basic understanding of an immunity as self-governance, the Article traces the provenance of section 230 and its sweeping application to online platforms through three very different, but complementary, legal contexts: first, within the landscape of immunities as extraordinary legal devices often employed in support of governing activity; second, within the conception of the corporation as a self-governing institution embedded in immunities and impunities; and, third, within the constitutional framework and its capacity to recognise the “sovereignty-sharing” arrangement of government and platform in cyberspace. The Article’s overarching argument is that section 230 taps into the governing propensity of platforms not just as intermediaries or gatekeepers of online content, but as corporate actors which are, it is argued, inherently immune/self-governing actors with a long-standing history of “sovereignty-sharing” with government. Through this corporate prism the extraordinary “sovereign” role of platforms in cyberspace becomes intelligible. Normatively, the argument recasts platforms as hybrid private-public actors, consistent with the body of corporate scholarship, which postulates the sui generis nature of the corporation as a neither quite private nor quite public. Section 230 intensifies this argument in the case of online platforms. Repositioning online platforms as sitting “on the fence” of the private-public constitutional divide then provides the foundation for asking how constitutional restraints applicable to government may be adapted to ensure platform accountability.

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ORCID for Uta Kohl: orcid.org/0000-0002-8616-9469

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