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Massachusetts Supreme Court issues confusing decision on Section 230

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The Court’s reasoning on Section 230 is hard to parse, adding to confusion around this central piece of internet legislation.

The Massachusetts Supreme Judicial Court handed down a confusing decision in a case involving whether a peer-to-peer car rental service was subject to airport rental car regulations, or exempt because it was merely an online platform facilitating the speech of others. The Court affirmed the lower court’s injunction preventing the service, Turo, from continuing to operate at Boston Logan International Airport, with slight modifications. But the Court’s reasoning on Section 230 of the 1934 Communications Act (added by the 1996 Communication Decency Act) is hard to parse, adding to confusion around this central piece of internet legislation.

Section 230 is a federal law that limits liability of interactive computer service providers for content posted by third parties on their sites. Turo’s argument — which the Court rejected — was that, as an interactive computer service, it qualified for immunity under Section 230 for user’s posts about cars available at Logan Airport that ran afoul of the airport’s rental car regulations. The Court did not dispute that Turo was an interactive computer service provider. It did, however, identify what seem to be two alternative grounds for why Section 230 does not apply here.

First, the Court noted, Turo created its own content advertising Logan Airport and providing a search function to locate cars there; third-party content was not the issue. Second, Turo served as the “facilitator of the ensuing rental transactions … far more than just offering a website to serve as a go between among those seeking to rent their vehicles and those seeking rental vehicles.” In particular, the Court noted that Turo offered “substantial ancillary services to its hosts, such as collecting and remitting payments, offering (and mandating) liability insurance and roadside assistance that is available twenty-four hours per day and seven days per week, and screening guests before permitting them to rent a motor vehicle from a host.”

The first rationale offers Turo a cure (stop advertising and disallow that search function) while the second raises substantial questions about consequences for online platforms that “facilitate transactions.” Consider, for example, a newsletter service like Substack, which allows third-party comments and also processes subscription transactions. Might Substack be liable for what its authors or readers post by virtue of this “concentrated involvement in the transaction”? In a friend-of-the-court brief, the Reporters Committee — represented by the Cyberlaw Clinic at Harvard Law School — urged the Court to draw its line carefully to avoid casting these kinds of doubts on emerging business models for journalism. We’ll be following the issue closely to better understand what it means for the news media going forward.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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