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Senator Hawley Targets Big Tech's Liability Shield

June 17, 2020

Today U.S. Senator Josh Hawley (R-Mo.) introduced a bill to empower Americans to sue Big Tech companies who act in bad faith by selectively censoring political speech and hiding content created by their competitors. Cosponsored by Senators Marco Rubio (R-Fla.), Mike Braun (R-Ind.), and Tom Cotton (R-Ark.), Senator Hawley’s bill would prohibit Big Tech companies from receiving Section 230 immunity unless they update their terms of service to promise to operate in good faith and pay a $5,000 fine (or actual damages, if higher) plus attorney’s fees if they violate that promise.

"For too long, Big Tech companies like Twitter, Google and Facebook have used their power to silence political speech from conservatives without any recourse for users. Section 230 has been stretched and rewritten by courts to give these companies outlandish power over speech without accountability. Congress should act to ensure bad actors are not given a free pass to censor and silence their opponents."

Senator Josh Hawley

Senator Rubio said, “Recent actions by Big Tech call into question the legal immunities that social media companies enjoy under Section 230 and whether these firms live up to their obligations. It is time to take a fresh look at the statute and clarify the vague standard of ‘good faith’ for which technology companies receive legal protections. That is exactly what this bill does. While Section 230 serves an important purpose, it should not protect unrelated activities such as censorship and political activism.”

Background

The Limiting Section 230 Immunity to Good Samaritans Act provides that Big Tech companies who want to receive section 230 immunity must bind themselves contractually to a duty of good faith.

Under this bill:

  • Users could sue the major Big Tech companies for breaching their contractual duty of good faith;
  • The duty of good faith would contractually prohibit Big Tech from:
    • Discriminating when enforcing the terms of service they write (just like police and prosecutors are not supposed to discriminate when enforcing the law);
    • Failing to honor their promises;
  • Big Tech companies who breach their duty of good faith would have to pay $5,000 or actual damages, whichever is higher, plus attorney’s fees to each user who prevails.

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