More thoughts on the creation of a “Facebook legal privilege”

Broadly speaking, the law protects certain communications from forced disclosure in judicial proceedings. For example, the law recognizes an evidentiary “attorney-client privilege,” which is a legal privilege that protects confidential communications made to an attorney by his client. (In addition, you may have also heard of the “doctor-patient privilege” or the “clergy-penitent privilege.”) Let’s focus on the attorney-client privilege for now. The conventional or stated rationale for the existence of this privilege is to encourage the client to disclose all relevant information to his attorney, even information that may be damaging or potentially embarrassing. Does this privilege really accomplish this goal? No one really knows …

In a previous blog post, we proposed a “Facebook legal privilege” to protect all posts on social media sites like Facebook, WordPress, and Twitter. The ultimate rationale for our argument is that people should be free to post their comments and share their ideas on the Internet without fear of legal liability. (There might be some narrow exceptions, of course, but let’s err on the side of freedom.) By analogy, it’s worth noting that existing Internet platforms like Google, YouTube, Facebook, Tumblr, reddit, Amazon, eBay, and Craigslist already enjoy broad legal immunity from liability when they publish information provided by third parties under Section 230 of the Telecommunications Act of 1996, codified at 47 U.S.C. § 230. So why not extend this immunity (either through formal legislative fiat or through piecemeal judicial interpretation) to all Internet users as well?

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