RESPONSIBILITY OF ONLINE PLATFORMS FOR THIRD-PARTY CONTENT: A COMPARATIVE ANALYSIS OF THE EU DIGITAL SERVICES ACT AND THE US SECTION 230

Abstract

This article provides a comprehensive comparative analysis of the two dominant Western regulatory models governing the liability of online platforms for third-party content: the European Union’s Digital Services Act (DSA) and Section 230 of the United States Communications Decency Act (CDA). The analysis employs a comparative legal methodology to dissect the legal architecture, enforcement mechanisms, and underlying jurisprudential philosophies of each regime. It finds that the DSA represents a proactive, systems-based model of co-regulation rooted in a philosophy of ‘digital constitutionalism’, which imposes tiered, affirmative due diligence obligations on platforms to mitigate systemic risks and protect users’ fundamental rights. In contrast, Section 230 embodies a reactive, immunity-based model grounded in the ‘marketplace of ideas’ tradition, providing a broad liability shield to foster innovation and protect free expression, with minimal affirmative duties. The article examines seminal case law, including Zeran v. America Online, Inc. and the Supreme Court’s inconclusive ruling in Gonzalez v. Google, LLC, alongside the DSA’s early enforcement actions against platforms such as X and Meta. It concludes that the two frameworks are predicated on fundamentally incompatible theories of harm—systemic risk versus individual tort—making direct convergence unlikely. The DSA’s most significant long-term impact may be the establishment of a permanent institutional capacity for regulatory oversight in the EU, a development with no parallel in the US, suggesting a widening transatlantic divergence in platform governance. Future challenges, particularly the rise of generative AI and decentralised platforms, will further test the resilience and adaptability of both models.