As a business owner, how confident are you that your presence on social media brings you the returns essential for your business’s sustainability?

Section 230, a key part of U.S. Internet law, helped shape the modern Internet. However, the rise of advanced algorithms, AI, and the rapid growth of social media platforms has made it harder to interpret and apply this law.

The recent decision by the US Court of Appeals for the Third Circuit in Anderson v TikTok Inc., which held TikTok responsible for its algorithmic recommendations, could reshape the landscape for social media platforms because it departs from the broad immunity provided by Section 230.

Section 230 of the Communications Decency Act

Section 230 of the Communications Decency Act is a pivotal piece of U.S. Internet legislation passed in 1996 that provides immunity to social media platforms and other websites that host user-generated content from being held liable for the content posted by users of the platform. Section 230 operates in two ways.

It protects social media platforms if someone posts something illegal or harmful. It also allows platforms to moderate content in good faith, meaning they can remove or restrict access to objectionable content.

Section 230, a cornerstone of U.S. Internet legislation, played a pivotal role in shaping the modern Internet. However, the advent of sophisticated algorithms, artificial intelligence (AI), and the exponential growth of social media platforms has made the interpretation and application of this section increasingly contested. 

The impact of modern technological advances on Section 230

Twenty-six words in Section 230 distil the legalese while simultaneously creating the key ambiguity. The critical words are “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Determining who is a publisher and who is only a distributor can be ambiguous, particularly as advances in modern technology compound this ambiguity.

Some of these advances that have had a significant impact on Section 320 are:

1. Algorithmic Content Recommendations

Platforms like Facebook, YouTube, and TikTok no longer passively host user-generated content; they actively recommend content to users based on their preferences and behaviour. These algorithms can amplify harmful content such as misinformation, conspiracy theories, and dangerous challenges, as occurred in Anderson v. TikTok.

Court cases and legal discussions now consider whether platforms should be shielded from liability when their algorithms promote or recommend harmful content. While the consensus has continued to protect platforms, the Court ruled in Anderson v TikTok that TikTok could be liable. This marks a change in one Court’s view of Section 230.

2. Artificial Intelligence and Content Moderation

The rapid growth of the internet and the sheer volume of material posted mean platforms use AI-powered tools to moderate content, identifying and removing harmful material like hate speech, extremist content, and misinformation. While AI can assist with content moderation at scale, it also introduces complexities regarding biases, errors, and inconsistencies in enforcement.

AI content moderation raises questions about platforms’ responsibility. Critics argue that platforms should be subject to more scrutiny regarding the effectiveness of their AI moderation systems. If AI fails to remove illegal or harmful content, platforms might face increasing calls to limit their Section 230 immunity.

3. Deepfakes and Misinformation

Advances in AI and deep learning have led to the rise of deep fakes—realistic but fabricated videos and audio clips that can spread false information. This technology complicates the regulation of harmful content because it can be challenging to detect and prevent.

While Section 230 has historically protected platforms from liability for user-generated content, deep fakes present new challenges. There are calls for reform to hold platforms accountable for failing to detect or remove malicious deep fakes, especially those that cause real-world harm (e.g., political disinformation or manipulated videos of public figures).

4. Massive Scale of Platforms

As mentioned, the growth and size of platforms like Facebook, YouTube, and TikTok—each with billions of users—make traditional content moderation difficult. Automation helps with moderation, but this often leads to over- or under-enforcement.

As platforms grow, critics argue that they should be treated differently under Section 230. Reform proposals have suggested reducing or removing Section 230 protections for the largest platforms, which are better equipped to invest in content moderation while keeping protections in place for smaller startups that lack these resources.

5. Targeted Advertising and Data Collection

Platforms increasingly use user data to target ads, and this business model has led to concerns that harmful content (such as misinformation or extremist content) is promoted because it generates engagement, which drives advertising revenue.

Some have argued that this business model means platforms should face liability for promoting harmful content if they profit from its spread through targeted advertising. This has sparked discussions around reforming Section 230 to account for platforms’ financial incentives when harmful content thrives.

7. Geopolitical Influence and Misinformation

Foreign actors can exploit platforms to spread disinformation or influence elections, as seen in cases like the 2016 U.S. election. The role of bots, AI-powered accounts, and algorithmic amplification of divisive content have become significant concerns.

Consequently, there are calls for revising Section 230 to hold platforms accountable when they fail to prevent foreign interference or misinformation campaigns. Platforms’ global reach makes it more challenging to address these issues through existing legal frameworks.

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Technological advances complicate the application of Section 230, making it more difficult to justify blanket immunity for platforms that not only host content but also amplify, moderate, and profit from it. 

As AI and algorithms increasingly shape online experiences, there is growing momentum for reforms to narrow the scope of Section 230’s protections or hold platforms accountable for algorithmic recommendations and the consequences of automated decision-making. 

While the ruling in Anderson v TikTok reverses this protection normally provided to platforms, whether this decision is upheld and other Courts follow the lead of the Court of Appeals for the Third Circuit remains to be seen. However, if Courts follow the example set by the Court of Appeals, it will significantly impact social media platforms.

What it would mean for social media platforms

If Section 230 of the Communications Decency Act (CDA) were overruled or watered down, it would have significant implications for social media platforms and the broader internet. 

Some of these implications include:

1. Increased Liability for Content

Without Section 230, platforms could be held responsible for what their users post. This might force platforms to implement stricter content moderation policies to avoid lawsuits. It could discourage platforms from allowing open discourse because any harmful, defamatory, or illegal user-generated content could lead to legal action.

2. Stricter Content Moderation

Platforms might become far more cautious about what content they allow. They would likely implement extensive moderation systems or use more automated systems (like artificial intelligence) to monitor and filter content. This could lead to more aggressive removal of posts, reducing the amount of user-generated content.

3. Reduction in User Participation

With stricter moderation or a fear of being sued for controversial content, platforms might limit the types of users they allow. There might be fewer opportunities for free and open conversation, making these platforms more tightly controlled. Users might migrate to smaller or decentralised platforms with less strict rules.

4. Impact on Smaller Platforms and Startups

Overturning Section 230 would likely benefit larger platforms with the resources to handle legal challenges and implement complex moderation systems. Smaller platforms or startups might struggle with the increased cost and legal risks, potentially stifling innovation and competition.

5. Content Polarization

Without Section 230, platforms could become more polarised, promoting a controlled environment or allowing almost unrestricted content to avoid accusations of bias. This could exacerbate existing divides in social media ecosystems.

6. Less Tolerance for Controversial Content

The fear of being sued could lead platforms to take down or censor more content pre-emptively, including content that may not be illegal but is controversial. This could have chilling effects on free speech and expression on the internet.

7. Possible Legal Fragmentation

Different states or countries may have laws governing content moderation and liability, leading platforms to implement region-specific policies. This could result in fragmented user experiences depending on the location, with some regions seeing stricter rules than others.

8. Increased Legal Battles

Social media companies could face lawsuits from individuals, groups, or governments claiming harm from specific posts or content. These legal challenges could result in financial burdens and put some companies out of business.

In summary, overruling Section 230 could lead to a more regulated, less open internet, where platforms take a much more conservative approach to allowing user-generated content, potentially reshaping the entire landscape of online communication.

Efforts to reform Section 230 primarily focus on increasing accountability for harmful content while retaining the law’s role in protecting free speech and innovation. The challenge lies in balancing the benefits that Section 230 provides to online platforms with the growing concerns over the harmful effects of misinformation, hate speech, and illegal activity that can flourish under its protections.

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While large not-for-profit organisations recognise the importance of having a clear digital marketing strategy that is implemented and reviewed regularly, many small to medium-sized not-for-profit organisations still struggle to develop such a strategy. This lack of an effective strategy means they are not accessing the benefits that digital marketing brings to their service delivery and utilisation. 

What are the benefits for not-for-profit organisations?

1. Financial Benefit

Many not-for-profit organisations face challenges with the rising costs of living and service delivery. In conjunction with rising costs, donations from everyday Australians have dropped to their levels since the 1970s. This adds to the financial vulnerability of many not-for-profits.

Small and medium-sized not-for-profit organisations heavily rely on government grants to manage this vulnerability. This reliance exposes organisations to the impact of changing government priorities. The result is that organisations must adapt their service delivery to meet these priorities rather than the community’s needs. For many smaller not-for-profit organisations, the pressure from governments is about demonstrating that in addition to providing services, the organisation is sustainable and can access multiple government funding sources. The focus shifts from an outward focus on service delivery to an inward focus on grant applications and managing internal processes to demonstrate sustainability.

A digital marketing strategy allows not-for-profits to reverse the lack of donations from the public and tap into different ways to raise donations from the public. The Digital Technology in the Not-For-Profit Sector 2022 Report states that 42% of organisations collect online donations. The most significant way donations are being collected is through direct website e-commerce.

In other words, an organisation’s website is not simply to provide it with an online presence. It is a valuable tool for raising potential donations and helping reverse the heavy reliance on government funding.

2. Google for Non-Profits

In the 2022 Digital Technology Report mentioned above, only 26% of organisations used the Google Ads Grant program. While this figure is up 6% from the previous year, it means that 74% of organisations are not benefiting from Google Grants.

Google Ads are the advertisements that show up on Google search results pages. Organisations pay for them to appear at the top of the page via a bidding system, with the highest bid receiving the rights to the top listing. Not-for-profit organisations can sign up for a Google Nonprofit account which entitles the organisation to US $10,000 per month of free advertising to ensure the organisation or a campaign appears in those coveted top spots.

When a not-for-profit organisation fully utilises Google Grants in combination with a website that has been optimised to attract donations, the likelihood of increasing community and donor involvement in the organisation is exponentially improved.

3. Community Engagement

An effective digital marketing strategy for not-for-profits is more than just receiving donations.

While donations and fundraising are essential to the survival of many not-for-profits, a digital marketing strategy based solely on this end will likely fail. This is because of the Time-Ask effect.

The Time-Ask effect happens when you mention a monetary donation early in an engagement process with someone interested in your services. When this happens, donors begin to think more analytically about their resources and whether they are prepared to donate. However, if donors are asked to share their time, it creates an experience that induces emotion. This emotion will motivate donors to give more than if they had been directly asked for money.

Sharing time can be the time a person spends reading the story the not-for-profit organisation is telling—the time to stop scrolling, notice and read.

Community engagement is essential for the viability and continued success of the not-for-profit organisation.  Many not-for-profits began as single-issue organisations. In other words, they were established to provide services to a group of people with a particular issue that needed to be addressed effectively in the wider community. However, most single-issue organisations must expand to include other services at some point in their history. This is where effective community engagement pays dividends.

Why do non-profit organisations not invest in effective digital marketing strategies?

The time and cost of having a digital strategy are often viewed through distorted lenses

When we go to an optometrist for an eye test, we know what it is like to view letters through lenses that distort our vision.

Many leaders in the not-for-profit sector have a distorted view of the time and cost involved in developing and implementing an effective digital marketing strategy.

Time

Developing an effective digital strategy takes time. To be effective, the digital strategy requires careful attention, particularly in the early stages of development. The impact of messaging needs to be reviewed and reworked if required. This is an ongoing activity.

Yet, the 2022 Digital Technology Report found that only 40% of organisations regularly analyse their online communication and marketing practices.

Leaders in small to medium not-for-profits often become caught up in service delivery. Consequently, the time needed to create, develop, and monitor digital marketing strategies is unavailable. The leader then justifies this lack of time by saying that digital marketing is unimportant compared to service delivery.

However, the role of an effective leader is to balance multiple priorities to ensure the organisation’s overall success. It is not an “either/or” equation, service delivery or a digital marketing strategy. It is “both/and”. The service delivery provides the story of the not-for-profit, which is its brand.  It is this brand that must be communicated through the digital strategy.

Cost

Many leaders in the not-for-profit sector do not understand the financial cost involved in establishing a sound profitable digital strategy.

Because leaders view it as unimportant, digital marketing is the first thing to be cut whenever there are cost pressures. This is a decision that is short-sighted. Small not-for-profit organisations need to create a large footprint so that people in the community are aware of the excellent work they do.

Creating a strong digital footprint is often the easiest and most effective way. Reducing or cutting digital marketing costs may save dollars in the short term. In the longer term, what is lost is community awareness and knowledge of what the organisation does.

Building a solid following within the community can take 12 – 18 months, depending on the organisation and the amount of time invested in digital marketing. Having invested in and created a community presence, to then reduce funding to digital marketing means the organisation loses the community base it has established and its place in people’s awareness.

Balancing budgets is challenging, particularly in an era of rising costs and lower donations. However, not-for-profit organisations need to have a greater understanding of and appreciation of the importance of an effective digital marketing strategy for their long-term survival.

A failure to think through and develop an effective digital marketing strategy in the 21^st century can leave not-for-profit organisations relegated to the unheard-of and unknown services within a community.

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