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3. Is Twitter Liable Under 47 U.S.C. § 230 of the Communication Decency Act?

Section 230 of the Communication Decency Act (“CDA”) states that “No provider or user of
an interactive computer service shall be treated as a publisher or speaker of any information
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provided by another information content provider”. Put differently, a social media platform
such as Twitter cannot be held liable for the content its users publish or send out on a daily
basis.

While the CDA is quite clear, Mr. Rivello could argue that Twitter should be held liable under
the CDA because it violated its continuing obligation to monitor its platform to ensure users
comply with its Terms and Service, or simply, did not do enough. If that argument were to
stand, Mr. Rivello could potentially argue that Twitter should be the Defendant in the lawsuit,
not him, to which Twitter should be joined as a necessary and indispensable party.
However, both Mr. Eichenwald and Twitter could argue that Twitter has policies in place that
set the parameters for which its service should and should not be used for; that there is no
way for Twitter to actively monitor each and every post for content that potentially violates
the Terms and Services.

Twitter, if joined as a party in the lawsuit, could argue that under the CDA, it is a provider and/or
an interactive computer service. While it does take steps in monitoring heavily reported
accounts or for certain posts that post topics or keywords that have been flagged for certain
keywords, for all intents and purposes, its platform is populated by users around the globe, and
it would be next to impossible to monitor every single user throughout any given day. For
example, Twitter for some time now has been taking GIFs and converting them into a .mp4
format before posting it. This allows for the user or recipient of a video to choose to play the
video without the risk of it playing undesired content. It is likely that Twitter would succeed under
the safe-harbor provisions of the CDA.

F. Case Study: Pokemon Shock
Today’s millennial generation grew up with one of the hottest animated cartoons of all time,
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Pokémon. However, one episode in Japan was removed from the air as a result of reports that
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young viewers were experiencing seizures and temporary blindness. The episode, entitled,
Electric Soldier Porygon, or known internationally as Computer Warrior Porygon, depicted
Pikachu, a yellow-moused Pokémon with electric abilities, using his lightning attack to blow up
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some virtual missiles in a cyber-space environment. However, since the episode was taking
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place in cyberspace, the animators did not think a regular explosion would do the trick.
Instead, the animators used a rapidly-strobing technique that flashed red and blue lights on the
screen, making the explosions look more “virtual”. Reports indicated that as a result of this
episode, there was a connection between the flashing, strobes on the television and viewers
who suffered from certain physical impairments such as epilepsy. Health professionals reported
that it was a combination of the strobe lighting effects along with the popularity of the program.
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63 47 U.S.C. § 230.
64 https://en.wikipedia.org/wiki/Pokémon
65 http://kotaku.com/5757570/the-banned-pokemon-episode-that-gave-children-seizures; see also
http://www.nejm.org/doi/full/10.1056/NEJM200407223510424#t=article
66 http://www.cnn.com/WORLD/9712/17/video.seizures.update/; see also
http://www.nejm.org/doi/full/10.1056/NEJM200407223510424#t=article; see also
http://www.nejm.org/doi/full/10.1056/NEJM200407223510424#t=article
67 Id.
68 Id.
107 Cyber Warnings E-Magazine – May 2017 Edition
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