Deterring Viral Pandemics of COVID-19 Misinformation

Michael L. Rustad & Thomas H. Koenig | April 25, 2020

As the coronavirus spreads across the United States, so does an info-demic of dangerous misinformation threatening public health. UN Secretary-General António Guterres characterized this misinfo-demic as a “secondary disease” that needlessly threatens public health, observing that “[h]armful health advice and snake-oil solutions are proliferating.” A U.S. Attorney similarly warned Americans to be “extremely wary of outlandish medical claims and false promises of immense profits.” “[O]ver 4,000 coronavirus-related domains—that is, they contain words like “corona” or “covid” —have been registered since the beginning of 2020. Of those, 3 percent were considered malicious and another 5 percent were suspicious.

Social media sites are also being used to spread misinformation. For example, postings on the encrypted app Telegram are promoting the dangerous suggestion that ingesting toxic bleach is a miracle cure for COVID-19. President Donald Trump may have been influenced by such disinformation when he “told a press briefing. . . that because disinfectant killed the virus on external surfaces, perhaps it could be injected into the bodies of patients infected with COVID-19 as a treatment.”

The Harvard Health Blog has been tracking “false and misleading posts” about COVID-19 on social media such as Facebook, Twitter, YouTube, and TikTok, including the following:

  • “[A] false claim that ‘coronavirus is a human-made virus in the laboratory.’”
  • “[S]ales of unproven ‘nonmedical immune boosters’ to help people ward off” COVID-19.
  • “Unfounded recommendations to prevent infection by taking vitamin C and avoiding spicy foods.”
  • “Dangerous suggestions that drinking bleach and snorting cocaine can cure coronavirus infection.”
  • A video with dangerous lies such as avoiding cold food and drinks prevents coronavirus infection.

Financial motives underlie many of these viral disinformation campaigns. Right-winger Alex Jones claims “that his Superblue brand of toothpaste ‘kills the whole SARS-corona family at point-blank range.’” Televangelist Jim Bakker is selling “colloidal silver—tiny silver particles suspended in fluid”—as a cure that will eliminate COVID-19 within 12 hours. Recently, a former small-time actor, Keith Lawrence Middlebrook, peddled a fake coronavirus cure to his millions of social media followers while fraudulently soliciting investors. Videos posted to his 2.4 million Instagram followers displayed “nondescript white pills and a liquid injection,” claiming they would offer immunity and a cure.

Other postings appear designed to spread fear and hatred. “Conspiracy theories falsely linking [Bill] Gates to the coronavirus’ origins in some way or another were mentioned 1.2 million times on television or social media from February to April” alleging, among numerous other accusations, that this was a scheme to implant vaccine microchips in everyone.

The problem with these false postings—aside from the fact that they are fabricated—is that some may believe them. By relying upon such fictitious information, people may decide to no longer observe physical distancing, handwashing, surface disinfection, and other preventive measures. They may even die from taking dangerous lies seriously.

 In the United States, there is no right to remove dangerous public health misinformation from the Internet because of Section 230 of the Communications Decency Act (CDA § 230). CDA § 230 states: “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.” This brief clause is a liability shield that protects websites for anything third parties create and post online, even if the false information endangers the public.

The majority of federal circuits have interpreted CDA § 230 to establish a broad “federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Interestingly, “[t]he legal protections provided by CDA 230 are unique to U.S. law; European nations, Canada, Japan, and the vast majority of other countries do not have similar statutes on the books.”

We believe Congress should amend CDA § 230 to enable the victims of dangerous postings to use tort law to force websites to takedown dangerously false postings about the COVID-19 and similar threats. As with the Digital Millennium Copyright Act, websites will have no duty to monitor hazardous public health disinformation. A website operator would be required to expeditiously remove dangerous postings only after receiving notice from government regulators or the direct victims of this incorrect information. Ultimately, this notice and takedown regime will realign U.S. law into conformity with the European Union’s E-Commerce Directive. Our CDA § 230 reform harmonizes U.S. law with the Directive by premising the liability shield for third party content on expeditiously disabling access. This CDA § 230 reform will enable Facebook, Instagram Twitter and other global Internet websites to implement a single notice and takedown procedure, rather than having different policies for the U.S. and Europe.

Michael L. Rustad is the Thomas F. Lambert Jr. Professor of Law at Suffolk University Law School and Co-Director of its Intellectual Property Law Concentration.

Thomas H. Koenig is Professor of Sociology at Northeastern University.