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  1. PART III: REIMAGINING 230 AND RECOURSE FOR CREATORS

PART III: REIMAGINING 230 AND RECOURSE FOR CREATORS

The ideal solution for the Divino Group issue of unwanted censorship by digital platforms (and platforms’ algorithms) would be to enact a new piece of civil rights legislation designating the LGBTQ+ community as a fully protected class, making it a federal offense to discriminate against LGBTQ+ individuals and their content on any platform whether monetized or not. Such a change would enable Section 230 to be more appropriately amended to state that no platform or host of content may flag, remove, moderate, or demonetize content based solely upon keywords that indicate LGBTQ+ affiliation. However, such sweeping changes to civil rights legislation are unlikely in the foreseeable future.157

In the meantime, this paper proposes the following changes to Section 230 to help meet the needs of modern platforms as well as content creators.

First, amend Section 230(c)(2) to replace the words “otherwise objectionable” with “objectively denigrating,” and add a clause indicating that the content creator has the right to review and contest any moderation that the creator in good faith believed to be in line with the published policies of the platform. This would be

154 47 U.S.C. § 230(c)(2).

155 Kosseff, supra note 145.

156 Reno v. ACLU, supra note 77.

157 See, e.g., Dallas Ducar, Passing the Equality Act will Ensure LGBTQ Civil Rights, BOS. GLOBE (Feb. 15, 2022), https://www.bostonglobe.com/2022/02/15/opinion/passing-equality-act-willensure-lgbtq-civil-rights/ (explaining that “[f]or over 50 years, bills have been introduced to guarantee nondiscrimination protections for LGBTQ Americans and yet have never passed” and that the Equality Act, legislation meant to prohibit discrimination against LGBTQ Americans in public spaces, had been awaiting a Senate vote for over a year as of February 2022).

similar to the language of the notice and takedown procedures of the Digital Millennium Copyright Act (“DMCA”).158

Second, add a new clause, Section 230(c)(3), which would read: “A content creator (“Creator”) whose content has been removed, moderated, demonetized, flagged, or otherwise restricted from any platform or internet service provider (“Platform”) more than six (6) times in a period of six (6) months has the right to file a claim against that Platform for (1) reinstatement of their removed, moderated, demonetized, flagged, or otherwise restricted content, and (2) damages totaling the amount of calculated loss of advertising revenue and reasonably demonstrable loss of social media following if, in good faith, the Creator can (a) demonstrate that their content consistently fell within the policy parameters specified by that Platform and (b) demonstrate financial loss or hardship directly imposed or proximately caused by the demonetization of their content.”

These slight changes would modernize Section 230 and cause platforms to seriously reevaluate their content-flagging mechanisms, procedures, and algorithms to ensure that content such as that in the Divino Group lawsuit was not inappropriately flagged and demonetized. The changes would provide some recourse to LGBTQ+ content creators, who could legally argue for the reinstatement of their monetized content within a brief, but reasonable, period postdemonetization in order to mitigate the financial losses caused by temporary demonetization. Further, these changes would allow for a fine to be levied against the platform for repeatedly mis-flagging the same creator’s content. While this would not prohibit platforms from creating policies counter to the interests of the LGBTQ+ community, it would encourage platforms like YouTube (who purport to support the community) 159 to reevaluate their blacklisting and flagging protocols and algorithms. The changes would also incentivize platforms to fine-tune their policy language while motivating creators to seek out the platforms that are acting in their best interest both policy-wise and monetarily.

158 Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998); see also Pub. L. No. 105-304, title II, § 203, 112 Stat. 2886 (1998) (codifying 17 U.S.C. § 512, where § 512(c)(3) creates the DMCA notice and takedown requirements).

159 As far back as 2013, YouTube’s Marketing department was encouraging creators to share LGBT content using the hashtag #ProudToLove, stating: “At YouTube, we’re proud to stand with the LGBT community to support equal rights and marriage equality–we believe that everyone has the right to love and be loved. Pride Month may be coming to a close, but we hope YouTube is a place where you can feel proud and build a community all year long.” Raymond Brian, We’re #ProudToLove the LGBT Community on YouTube, YOUTUBE OFFICIAL BLOG (June 27, 2013), https://blog.youtube/creator-and-artist-stories/were-proudtolove-lgbt-community-on/; see also Sara Ashley O’Brien, YouTube CEO Apologizes to LGBTQ Community but Stands by Crowder Decision, CNN BUS. (June 10, 2019), https://www.cnn.com/2019/06/10/tech/youtube-susanwojcicki-code-con/index.html (Susan Wojicki, CEO of YouTube, was quoted during the Crowder controversy as saying that YouTube “wants to support [the LGBTQ] community”).

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