The Congress accepts Executive Orders

Executive Order is supposed to regulate social media in USA

The US government has published an executive order to restrict the protection of social media in the US under Section 230. According to the New York Times [I], the argument that social media, by deleting and moderating posts and users, restricts freedom of expression could be made easier for lawmakers.

A first leak in the Executive Order was published on Thursday, May 28th, 2020 [II]. Daphne Keller, lecturer at Stanford Law School and director of the “Program on Platform Regulation” there, announced her first assessment on Twitter [III] [IV]. On the night of Friday, May 29th, 2020 the official Executive Order was published [V].

This debate gained relevance again because Twitter labeled statements by Donald Trump that postal votes could lead to election fraud as "unsubstantiated" and marked it [VI]. Trump was outraged and accused Twitter of censorship and manipulation of opinion.

The following statements relate to the leaked document. The final version does contain some changes, but its content is so similar to the leak that, in consultation with the experts, we did not consider it necessary to update the statements.

 

Overview

     

  • Dr. Simon Assion, lawyer specializing in information and communication law in the law firm Bird & Bird and co-founder of "Telemedicus", a "legal internet project on all legal questions of the information society"
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  • Dr. Stephan Dreyer, Senior Researcher Media Law & Media Governance, Leibniz Institute for Media Research | Hans Bredow Institute (HBI), University of Hamburg
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  • Prof. Dr. Tobias Keber, Professor of Media Law and Media Policy in the Digital Society, Stuttgart Media University
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  • PD Dr. Matthias Kettemann, Head of Research Program “Control Structures and Control Formation in Digital Communication Spaces”, Leibniz Institute for Media Research │ Hans Bredow Institute (HBI), Hamburg
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  • Prof. Dr. Tobias Gostomzyk, Professor of Media Law, Technical University of Dortmund
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  • Prof. Dr. Anne Riechert, Professor of Data Protection Law and Information Processing Law, Frankfurt University of Applied Sciences, Frankfurt am Main
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  • Prof. Dr. Oliver Zöllner, Professor of Media Research and Digital Ethics, Stuttgart Media University
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Statements

Dr. Simon Assion

Lawyer specializing in information and communication law in the law firm Bird & Bird and co-founder of "Telemedicus", a "legal internet project on all legal questions of the information society"

“Such a law would be neither possible nor necessary in Germany. There are already laws and established jurisprudence for the so-called 'distributor liability' of social media providers. These are good and sensible regulations that have proven themselves in practice. "

“In the EU, under the heading 'Digital Services Act', there are also considerations to make social media platforms more responsible for the content they distribute. However, more in the direction that the providers should better fight false information. "

"From the point of view of German and European fundamental rights, states have to be very cautious when it comes to regulating social media providers."

Dr. Stephan Dreyer

Senior Researcher Media Law & Media Governance, Leibniz Institute for Media Research | Hans Bredow Institute (HBI), University of Hamburg

On the question of what would change for social media and their users if the leaked Executive Order actually came into force:
“At its core, the ruling consists of an ordered legal interpretation: If platform providers exert influence on the selection and presentation of user-generated contributions, government agencies will have to regard this as editorial activity in the future. The platforms can be held responsible for such measures; the order assumes here that it is always an interference with freedom of expression. However, if the providers want to benefit from broad liability privileges for user-generated content, as they have done so far, they would have to refrain from such interventions. "

“The ruling thus establishes a brutal incentive system: Platforms cannot be prosecuted if they simply leave all user-generated content 'alone'. Exceptions to this principle still apply to content that is illegal under criminal law. But for all other forms of statements that are criminally irrelevant but possibly questionable, disinformative, manipulative or propagandistic, it would be better for the platforms in the future to leave everything online unchanged. This corresponds to one of the more radical views of the US 'free speech' doctrine, of course there are other, more moderate ones too. "

“The consequence for the platforms would be that widely discussed measures against hate speech, disinformation as well as manipulative statements and propaganda no longer appeared attractive on these platforms. If the platforms no longer support corresponding initiatives such as fact checking offers, labeling of dubious statements, deletions or downranking and so on, an increase and improved visibility of such content would be foreseeable without appropriate measures. "

On the question of what the impact on Europe would be:
"This is not foreseeable because (a) it is unclear to what extent the platforms will submit to the incentive system of the injunction, (b) it is open to what extent the interpretation that has been ordered will stand before US courts, (c) is theoretically open to the platforms, to display the content differently in Europe than in the USA, and (d) this concerns the question of the implementation and feasibility of EU requirements for providers from other EU countries. In purely material terms, the ruling contradicts the prevailing approaches in Europe in terms of the right of expression and the more restrictive regulation of harmful content. Compared with the USA, the EU legal framework assumes that statements can be further restricted. "

On the question of the extent to which social media in Europe should be regulated in a similar way to traditional media:
“We are currently at a crossroads in Europe when it comes to regulating social media platforms. Certain content is politically and socially undesirable on these platforms, which is why in recent years there has been appeals to provider responsibility or laws such as the NetzDG that delegate content-related decisions to these platforms. This gave these platforms far-reaching decision-making powers about what, from their point of view, has a place in public communication and what does not. The decision-making power that was previously given to the provider is now being reproached for: Too much is being deleted, some say; too little is deleted, say the others. It is unclear on what basis the platforms delete or 'flag', say others. "

"This is where we are now, and the political discussion is currently moving between two alternatives: Do we want the state to take the reins more strongly and dictate to providers with strong laws what is legal and what is not? That would go hand in hand with a departure from the previous liability privileges of the platforms. They would then be responsible for what happens on their offers much earlier and more comprehensively. Or do we want to shape and control the decisions and the decision-making procedures on the platform side more strongly in order to prevent arbitrariness and secure fundamental rights? The proposals currently range between these approaches. In view of the current discussions about the direction of the 'Digital Services Act' at EU level, much, if not everything, is still open. With a view to disinformation, there is also the fundamental question of who should decide what is true and what is false. It is a struggle for interpretation sovereignty over socially shared knowledge. "

“The scope of the provision is extremely broad and would apply to all forms of providing non-proprietary content, including comment columns in blogs and journalistic portals and expressly also for search engines. Particularly with a view to the latter, it becomes clear that the leaked ruling should also apply to the alleged result bias on Google. The ruling thus also establishes an incentive system for a radically neutral sorting of results on search engines. "

“Another point is the order contained in the ruling that no US authorities should spend any more advertising money on platforms that take editorial measures in accordance with the ruling. In view of the government advertising budgets that are no longer available on Facebook, Google and Twitter, this is a sensitive threat. "

Prof. Dr. Tobias Keber

Professor of Media Law and Media Policy in the Digital Society, Stuttgart Media University

On the question of what would change for social media and their users if the leaked Executive Order actually came into force:
“The move touches on fundamental questions of responsibility and its distribution between different actors on the Internet. Traditionally - and this is basically the concept in the USA as well as in Europe - a distinction is made between providers of their own content (content providers) on the one hand and providers who convey third-party content (host providers). Content providers are fully responsible for the content they publish. With regard to the responsibility of the host provider, the principle applies that they are only liable for illegal content from third parties once they become aware of the illegal content and then have to remove content from the platform if necessary (notice and take down). In the traditional system, Twitter would be qualified as the host provider for third-party content and the service would be granted the privilege of liability. According to the regulation in the leaked executive order (if it is authentic), Twitter would, at the moment when the service intervenes on the basis of its terms of service and has an effect on the content of a tweet (for example by adding a reference to a fact on a post -Check is attached) lose the privilege of liability. "

“In the Executive Order of Trumps, a concept is proposed that would undoubtedly have a negative and fundamental effect on fact checker initiatives on social media platforms. Facebook, Twitter and Co. would have to fear that they would be used for an (incorrect) fact check. For economic reasons, it would be understandable for the platforms to forego this feature entirely. "

“What is remarkable is the initial thesis of the US President on which the proposal is (probably) based, according to which he invokes (unreservedly) freedom of expression (Free Speech) ('Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen! ') and posed as a victim of censorship by Twitter. Within our media system, one would ask the question whether a head of state can even invoke basic rights with regard to his official communication and whether a private company can censor in the legal sense, since censorship usually comes from the state. The extent to which freedom of expression can (also) be cited in favor of a platform provider such as Twitter also requires in-depth reflection. "

On the question of what the impact on Europe would be:
“In Europe, the adaptation of the rules for information brokers (intermediaries, including host providers) has been discussed for a long time and independently of the #Trump #Twitter cause. Commission President Ursula von der Leyen has announced a draft for a Digital Services Act, which the community is eagerly awaiting. At the national level, we address modifications of provider responsibility, among other things, at the level of the NetzDG (along with its currently discussed update) and the future state media treaty. It is undisputed that the originally far-reaching privileges of the host provider in individual areas require adjustments in view of the technical advancement (e.g. through the use of algorithms in the prioritization of displayed content). At the same time, however, it can be seen that this is an important institute that is of central importance for the development of the Internet as a free communication space. Adjustments by the legislature must therefore be made with sufficient sensitivity for the complex network of fundamental rights that encompasses the problem. The interests of the (active) users posting content and any third parties affected by this information, the (economic) interests of the mediating platform and those of the users (only passively) requesting the content must be balanced. "

On the question of the extent to which social media in Europe should be regulated in a similar way to traditional media:
“We will have to break away from the dogma that social networks appear as a mere infrastructure without reference to the content. On the other hand, the rules for media, which are still very different in the printed press and electronic media despite all convergence, cannot be fully transferred to the area of ​​social networks. Important steps in the right direction are the new regulatory approaches in the State Media Treaty to oblige intermediaries to be more transparent and to adhere to the principle of non-discrimination. "

PD Dr. Matthias Kettemann

Head of research program "Control structures and rule formation in digital communication spaces", Leibniz Institute for Media Research │ Hans Bredow Institute (HBI), Hamburg

On the question of what would change for social media and their users if the leaked Executive Order actually came into force:
“First of all, very little would change. The text is a big red herring. It is a political attempt by Trump to portray himself as a persecuted victim of the platforms. He wants to heat up his base with it. This is an election campaign and not a serious attempt to regulate the online communication world more fairly. "

“The Executive Order (EO) has a first section in which Trump emphasizes that he has always advocated the freedom and openness of online communication and that, in his opinion, online platforms carried out 'selective censorship'. This is 'un-American and anti-democratic'. This is followed by four content-related sections. "

"First of all, the most important Internet law in the world, Section 230 of the Communications Decency Act (CDA) of 1996 ('Section 230') provides for an exemption from liability for providers and users of an 'interactive computer service' for information provided by users publish. In short: platforms are not liable for the content of their users. Section 230 (c) has a Section 2 (A), which states that no provider or user of an interactive computer service can be held liable for deletion of content which is voluntarily undertaken in good faith in order to gain access to or availability restrict material 'that the Platform deems to be' obscene ... excessively violent, harassing or otherwise objectionable, whether or not that material is constitutionally protected '. The question of when a deletion or a restriction of the availability takes place 'in good faith' / in good faith becomes equally important. "

"Now to the EO:
First of all, the Federal Communication Commission is to prepare a regulation that clarifies when a platform does not delete “in good faith” and therefore not subject to the exception of Sec. 230 (c) (2) (A) of the Communications Decency Act falls and would therefore be regarded as editor; and under what conditions it has an influence on deletions 'in good faith' if the platform does not listen to the users sufficiently or does not explain the deletions to them well enough. "

"Second, Trump wants to forbid the placing of federally funded advertising on platforms that violate the principles of freedom of speech."

Thirdly, an online platform is to be set up to collect examples of 'Internet censorship'. These are then to be submitted to the Department of Justice and the Federal Trade Commission. The competition watchdogs should also investigate whether platforms are deceiving or showing unfair corporate practices. "

"Fourth, the attorney general is supposed to set up a working group to sift through the laws of the federal states to see whether action can be taken against 'unfair practices'' by online platforms, among other things because they should be treated like public spaces."

On the question of what the impact on Europe would be:
“Twitter and Facebook and the other platforms are already applying higher standards in most European countries than in America. The political relevance of the executive order is far higher than the legal one. Under certain circumstances, the debate could motivate platforms to give more reasons for their content-related decisions in order to demonstrate good faith. This could also lead to more justifications in Europe, which would only be good. "

On the question of the extent to which social media in Europe should be regulated in a similar way to traditional media:
“The regulation of social media in Germany is ensured by a balanced system of national and European norms as well as by self-regulation. In addition to the NetzDG, the State Media Treaty recently set the tone. Courts are also increasingly applying fundamental rights in the relationship between users and oblige platforms to comply with the fundamental rights. "

On the question of what the legal situation for fact checks on platforms in Germany looks like:
“At least in one case, the Karlsruhe Higher Regional Court yesterday declared a fact check on Facebook by the research network 'Correctiv' to be inadmissible. The court (according to the oral proclamation; nothing has been written yet) considered the audit entry “misleading” for the average Facebook user. It looked as if the fact check related to the reporting of 'Tichy's Insight' and not to the content of the open letter about the 'Tichy's Insight'. This is not permissible for reasons of competition law. However, this does not yet constitute a judgment about the legality of fact-checking on Facebook in general. "
 
On the question of what, in his opinion, it is really about:
"Donald Trump is concerned that his Corona policy will cost him re-election in November. So he opens a new front by constructing an enemy - 'the platforms' - that are 'un-American' acting. "

“A tweet from Donald Trump, who assumed that postal votes would lead to massive election fraud, was provided by Twitter with a note that the content was questionable. The notice linked to reports in mainstream media that challenged Trump's claims. "

“That triggered Trump. By early Wednesday morning, he had vowed to 'heavily regulate' or even 'close' social media companies. He can't do either. "

“Still, this is a turning point in social media's way of dealing with politicians' content. Especially in the context of fighting pandemics, Twitter and Co. have exercised their power to moderate false information more robustly. This is to be welcomed. Stronger fact checking has also been in effect for a long time with content related to elections - we remember blocked Twitter accounts because of the joke that voters like to sign their ballot.

“Trump's tweets about voting and in connection with the pandemic are therefore at the intersection of two extraordinary topics on which the platforms moderate. And yet: Twitter gave Trump a long time. Last week the president sent tweets several times that had a similarly weak factual basis. "

“That doesn't apply to everyone. In March, Twitter removed postings from Brazilian President Jair Bolsonaro and Venezuelan President Nicolás Maduro for violating the ban on disseminating misleading information about COVID-19 drugs. "

On the question of whether platforms are allowed to "censor" presidents:
“Platforms provide communication spaces. If you want to use them, I have to adhere to the terms of service. Anyone who violates this will be deleted. In Germany, the Federal Constitutional Court recently confirmed that platforms have to adhere to basic rights and are not allowed to delete / censor without a reason. A good reason is roughly the same application of their own terms and conditions. "

“A functioning democracy requires access to information, including about campaigning groups and people. This is also (or perhaps especially especially) true when these beliefs are questionable. Twitter's own rules say that if a tweet from a 'world leader' violates Twitter rules, but it is in the public's interest to leave the tweet on the service, it will not be deleted. Sometimes they put a note in front of it that provides context about the violation and allows people to click through if they want to see the content. "

On the question of what the legal situation in the USA looks like:
“Just yesterday, an influential federal appeals court dismissed the 2018 lawsuit brought by the conservative organization Freedom Watch and Laura Loomer against four large technology companies. Facebook, Twitter and other platforms blocked Laura Loomer's accounts, citing her anti-Muslim statements. The unanimous verdict of a three-person panel is only four pages long, but rejects a multitude of legal claims that some conservatives and liberals have made against social media companies in recent months. The appellate court judges said that despite their power, corporations cannot violate the First Amendment because it only governs governments and not the private sector. "

On the question of whether Trump's actions could harm him:
“If Trump tries to forbid Twitter to 'comment' on its content (or to check facts), then it could induce platforms to delete his tweets entirely (because they are undoubtedly allowed to do so under the CDA and the existing judicature). Then he would have overplayed his hand: So far, Trump has been treated far better by Twitter than other users. His tweets, even if they contained disinformation, were not deleted. If Twitter starts now, Trump has no legal chance. In America, platforms are allowed to delete whatever they want. The fundamental rights are - in America - not to be applied to platforms. "

Prof. Dr. Tobias Gostomzyk

Professor of Media Law, Technical University of Dortmund

On the question of what would change for social media and their users if the leaked Executive Order actually came into force:
“The scope for Twitter could become narrower - and always if, contrary to the liberal understanding of freedom of expression of the First Amendment, stricter guidelines for opinion and decision-making processes are drawn up. This also includes the labeling of posts based on fact checking. The Communications Decency Act, Section 230, is central to the assessment. It largely exempts social networks from liability risks if they curate and moderate content on their own. Only content that is obscene, harassing or offensive - i.e. ultimately criminally relevant - may be removed. Trump's argument now is that it must be done in good faith. But that is not the case, especially when content is censored or - as with fact checking - flagged. These decisions are based solely on the specifications of the private company Twitter. Ultimately, however, President Trump's primary concern is to put pressure on social networks, precisely because of the upcoming election campaign in the USA. He recently tweeted: 'Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen. ‘The further implementation of the Executive Order - so far it is only a draft - is therefore initially open to me."

“At the moment there is also a dispute about whether President Trump would have the competence to regulate the network by executive order or whether the US Congress would not be responsible. Apparently, however, the Congress has already been called to delete or delete Section 230 (“remove” or “change”). Immediately conceivable measures such as to refrain from paid advertising by the US government or to set up a complaints office for citizens who feel they have been treated unfairly by social media relate - as far as can be seen - only to the USA.

On the question of what the impact on Europe would be:
“The effects of an executive order from the US President would directly affect Twitter in the US. In Europe, especially for Germany, however, something else could apply - that is, comprehensive fact-checks are still allowed, although a discussion about their admissibility has also started here. Nevertheless, social media such as Facebook, YouTube or Twitter generally have an economic interest in standards that are as uniform as possible in Germany and Europe. This also applies to speaking rules. Because it is simply more cost-effective to set up uniform processes worldwide and not individually for each legal system. This also applies to the enforcement of standards for free speech on the Internet as it is operated by social networks, in particular through their community standards, but also in the labeling of posts. Therefore, a transatlantic collision could actually, if not legally, occur here: The EU demands measures against disinformation, in the USA they could be severely restricted. "

On the question of the extent to which social media in Europe should be regulated in a similar way to traditional media:
“There isn't much to be said for this. Social media are called 'media', but above all they provide a variety of brokerage services for third-party content. This means that unlike the press and radio, they do not produce content themselves, but above all allow others to use it in order to disseminate their content. That is a major difference. Conversely, this does not mean that social networks have no influence on opinion-forming processes: They formulate community standards that every user of Facebook, YouTube and Co. has to accept. You determine user interfaces that influence utterance (for example, only happy smileys or sad ones, only 140 characters or more). They use algorithms to determine findabilities on which a rating is based. They have posts marked as 'wrong' or 'partially wrong', which is relevant to their perception. They are creating their own institutions such as the Facebook Oversight Board to assess statements. Large social networks in particular have the function of general information and communication infrastructures. So the question arises as to how free social networks are when it comes to setting standards of expression. More precisely: Are you allowed to regulate more than freedom of expression allows? After all, social media lie between content producers such as media and pure technical communication in that they also have an influence on the dissemination, visibility and evaluation of information - for example through moderation, curation or flagging. "

Prof. Dr. Anne Riechert

Professor for data protection law and law in information processing, Frankfurt University of Applied Sciences, Frankfurt am Main

“According to the leaked document on Section 230 Communication Decency Act, providers of online services such as Twitter can in future also be held responsible for deleting or restricting access to content. According to the leaked document, the Federal Communications Commission (FCC) should propose regulations in this context within 30 days under which conditions a provider does not act in 'good faith', as this may be misleading, biased or incompatible with the terms of use of a Online provider is being considered or there should be an opportunity to be heard. So here the criteria of the FCC remain to be seen. Overall, it is always a difficult balancing act to weigh the fundamental right to freedom of expression against content that is classified as illegal. This has already been shown by various court decisions in Germany in the past. "

“A uniform approach would be recommended in Europe. In Germany, for example, on April 1, 2020, the federal government passed a draft law to amend the Network Enforcement Act, which is currently in the parliamentary process. One of the proposed new regulations includes that if a post is deleted by the provider of a social network, the user can in future request the network provider to review this decision. There is also a legislative proposal in Great Britain to regulate content on Internet platforms [1]. A law has also been passed in France that regulates social networks and provides for deletion obligations [2]. In principle, it must always be weighed up to what extent the decision on fundamental rights (for example freedom of expression) can represent a task for private companies. "

Prof. Dr. Oliver Zöllner

Professor of Media Research and Digital Ethics, Stuttgart Media University

"At first it sounds strange that of all people, the 'Twitter King' Donald Trump (with 80.5 million followers and a high frequency of almost daily tweets) now wants to curtail the constitutional rights of social media platforms - and a presidential one too Decree issued. First of all: This ruling should not stand in court. However, the disputes will drag on for a long time, will distract from the real problems of the USA (domestic and foreign policy) and ultimately also make a necessary, factual debate about the regulation of online social networks more difficult for a long time. "

“The fact that Trump has been spreading his very personal worldviews and opinions unfiltered on Twitter and other social media platforms, which often have little in common with the truth, is particularly absurd. So far, it has not been opposed by the operator. The fact that tentative references to factual errors in Trump's tweets are the trigger for a sweeping blow indicates a fundamental misunderstanding on the part of the President of the role of the media as traditional control mechanisms of politics. "

“For a liberal democracy, Trump's decree is a hard blow. 'Free Speech' has constitutional status in the USA and is one of the cornerstones of the country's social and political self-image. To put an ax on this under flimsy pretexts is a dangerous move by the US President. The decree, even if it will most likely be quickly cashed in, sets an example for social polarization, political camp thinking and authoritarianism. It reinforces similar tendencies in some other western states - not to mention real dictatorships elsewhere. What we are experiencing is the increasing disdain for free speech on the Internet, the creeping erosion of democratic principles and the rejection of an orientation towards the truth. Trump is increasingly becoming a role model for autocrats and dictators who create their own realities. With him, the US continues to lose its leadership role in the Western world, and with him, it loses a lot more reputation. In many societies, the rejection of truth orientations is currently causing great damage to the fields anyway. Trump's example of the 'strong man', who in a sense 'rules through' with a 'hard hand', will continue to inspire many who despise democracy. "

“A factual discussion of business models, data trading, monitoring and forecasting mechanisms, journalistic power and, last but not least, the sometimes enormous influence of Facebook, Twitter, Google and Co. on information and opinion-forming processes in many countries around the world is important shouldn't be overlooked. So far, the tech companies have been largely unregulated (especially in the USA). The company Facebook Inc. with its various platforms has long been a global empire and has more 'inhabitants' than China and India combined. Similar to the Google parent company Alphabet Inc. or Twitter Inc. their offers, programs and algorithms are barely transparent and evade public control. Trump's attack has probably made the necessary further debate about adequate regulation of tech companies virtually impossible for a long time - but maybe that's okay with him (and the companies themselves too). Because the US President knows that these platforms are his most valuable tool in the long-running presidential election campaign. And the companies that own these platforms want to continue operating their business models undisturbed. "

Information on possible conflicts of interest

Dr. Stephan Dreyer: "I have no conflicts of interest."

Prof. Dr. Tobias Keber: "I don't see any conflicts of interest."

PD Dr. Matthias Kettemann: "There are no conflicts of interest."

Prof. Dr. Anne Riechert: "I have no conflicts of interest."

Prof. Dr. Oliver Zöllner: "There are no conflicts of interest."

All other: No information received

References cited by the experts

[1] Lammar D (2020): A NetzDG for Great Britain? Netzpolitik.org

[2] Deutsche Welle (2020): France declares war on hatred online.

References cited by the SMC

[I] Haberman M et al. (2020): Executive Order Is Expected to Curtail Protections for Social Media Companies. New York Times.

[II] Executive Order: Preventing Online Censorship. Kateklonick.com

[III] Daphne Keller on Twitter.

[IV] Keller D: A Quick Take on the May 26 Executive Order on Platforms and CDA 230. Google Doc.

[V] White House (2020): Executive Order on Preventing Online Censorship.

[VI] Twitter: Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud.

Further sources of research

Karlsruhe Higher Regional Court: Presentation of a fact check on Facebook must not be misleading.

Will Oremus on Twitter: Recommendation from six experts on the subject.