Key takeaway #1 – The FTC’s request for public comment is a notable sign that the federal government is investigating online content moderation practices.
Key takeaway #2 – Companies should prepare for the possibility of a new legal landscape where content moderation practices face new legal challenges.
On February 20, 2025, the Federal Trade Commission launched an “inquiry” into “tech censorship” by calling for public comments from those who “may have been harmed by technology platforms that limited their ability to share ideas or affiliations freely and openly.” The deadline for comments is May 21, 2025.
While promulgated under the banner of protecting citizens’ rights to speech, this “inquiry” marks the Trump Administration’s first official action to address how businesses edit, moderate, and deliver user generated content online. The repercussions are widesweeping as any business with an online presence—whether selling products, allowing users to post content or commentary—may be at risk of further investigation. This also may be the precursor to changes in law that governs internet activity in the United States.
The Elephant in the Room – Section 230
- Section 230 of the federal Communications Decency Act has been called the “bedrock upon which the internet has flourished” and advocates have argued that “[t]he free and open internet as we know it couldn’t exist without Section 230.”
- Section 230 provides immunity to intermediaries who host online content, while at the same time permitting intermediaries to moderate, remove, or suppress content (and users) who violate their Terms of Use or otherwise post loathsome, inaccurate, dangerous or unreliable information.
- Any company that allows users to post any content has been the beneficiary of Section 230’s protections. Recent cases have started to cabin Section 230’s scope, but the core protections the law provides to internet platforms have remained intact.
- The FTC’s announcement does not mention it by name, but Section 230 is the elephant in the room, as it has been a long-time target of President Trump and several Republican Senators and Congressmen. Indeed, politicians on both sides of the aisle have been critical of Section 230, but for different reasons.
- The FTC announcement merely refers to “technology platforms” but does not identify which platforms, companies or industries it intends to examine.
If you do business online, you likely have some form of user generated content—do you permit users to post reviews, rate a product, post a blog? If so, changes in 230, and the FTC’s inquiry are relevant to you.
What Does the FTC’s Request for Public Comment Mean for You?
The FTC claims that certain technology platforms may be engaging in illegal and “un-American” censorship. The request for examples of alleged acts of censorship likely signals that the FTC will base further investigations and enforcement actions upon companies and practices disclosed by the public itself. There is no assurance that “big” tech alone is in the crosshairs. We anticipate the FTC will use its Rule 6 investigation powers after the public comment period ends in May 2025 to pursue companies across a variety of sectors.
So what should you do?
- Post-Section 230. Given some of the bipartisan criticisms of Section 230, in our view some form of revision or repeal of Section 230 may be on the horizon. If nothing else, we are likely to see agency action that may interpret or otherwise encroach onto Section 230. It is necessary to prepare now for potential changes to Section 230. Companies should audit where user generated content appears on their websites and revisit or reconsider their content moderation policies. Indeed, one of the largest internet platforms recently announced changes to their own content moderation policies. Should your company consider similar changes?
- State Inquiries. Politicians in the beltway are not the only ones looking at speech online. In addition to the FTC’s Request for Comment, states have been passing laws to cabin and further regulate content on the internet. Companies should prepare for investigatory requests from state Attorneys General.
- Private Lawsuits. If Section 230 is repealed or severely limited, companies should expect a deluge of lawsuits. Any user generated content—and any decision to remove user content—could be grounds for a civil action. Among the potential claims are claims for defamation, which Section 230 was intended to protect against.
- Company Policy Changes. Many modern day companies built their online presence, businesses and products around the protections and immunities of Section 230. How does that impact your product or business? Also, policies for businesses that work on the web, from terms-of-service to review guidelines to content-moderation policies, have all been built around Section 230. Should Section 230 disappear, virtually all those will have to be modified for the new reality.
- Conflicting and Diverse Requirements. And how do you balance state laws that require you to moderate content? Indeed, other regulatory regimes might provide contradictory directives. For example, California’s Prop 65 requires labeling on certain products’ online listing—can these labeling requirements subject you to lawsuit? If Section 230 is modified or eliminated, will you have 50 different state policies and laws to deal with.
- The European Approach. What about companies that do business in Europe where the Digital Services Act governs? How can companies comply with these additional requirements?
While we await the FTC and Congress, anyone operating on the internet should take this moment to review their policies, moderation policies and, frankly, contemplate how their business can and will pivot if Section 230 is changed.