Social Media Platforms or Publishers?

 

 

 

Google, Facebook, Twitter, and the internet are not media. They are something new.  The essential value of the internet is conversation, not content. The internet connects more than 3 billion people and enables a grand diversity among them to speak, if not yet to be heard. 

 

Before we kick off let’s clarify terms a bit:

*Platform: a company or technology that enables communication and distribution of information.A good example is a phone company. When talking to a friend certain words or ideas you communicate don’t get censored or buzzed out. A platform is not responsible (legally) for the content that is posted.

*Publisher: a company or person that qurates and distributes content.  You can think of all the news and media outlets out there as prime examples. A publisher is legally responsible for the posted content and the source.

If the provider edits, or monitors, or supervises content in any way, or posts its own, then it IS liable for defamation, criminal activity, infringement, etc. that occurs on its site, just as the publisher of a printed-on-paper publication would be.

If the provider has NO control over content which OTHER people post on his site, and is basically acting as the Internet equivalent of an old-fashioned telephone company, merely providing the lines and connecting the terminals but not listening in on or otherwise monitoring any users’ private conversations, then generally the provider is NOT liable for what said users do in private using those lines and terminals.

 

 Not surprisingly, the first websites to be sued for defamation based on the statements of others argued that they were merely distributors, and not publishers, of the content on their sites. One of the first such cases was Cubby v. CompuServe, Inc., 776 F.Supp. 135 (S.D.N.Y. 1991). CompuServe provided subscribers with access to over 150 specialty electronic "forums" that were run by third parties. When CompuServe was sued over allegedly defamatory statements that appeared in the "Rumorville" forum, it argued that it should be treated like a distributor because it did not review the contents of the bulletin board before it appeared on CompuServe’s site. The court agreed and dismissed the case against CompuServe.

Four years later, a New York state court came to the opposite conclusion when faced with a website that held itself out as a "family friendly" computer network. In Stratton Oakmont v. Prodigy, 23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995), the court held that because Prodigy was exercising editorial control over the messages that appeared on its bulletin boards through its content guidelines and software screening program, Prodigy was more like a "publisher" than a "distributor" and therefore fully liable for all of the content on its site.

The perverse upshot of the CompuServe and Stratton decisions was that any effort by an online information provider to restrict or edit user-submitted content on its site faced a much higher risk of liability if it failed to eliminate all defamatory material than if it simply didn’t try to control or edit the content of third parties at all.

The Communications Decency Act

This prompted Congress to pass the Communications Decency Act in 1996. The Act contains deceptively simple language under the heading "Protection for Good Samaritan blocking and screening of offensive material":

    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.

Section 230 further provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."
Websites Covered by Section 230

Is an "interactive computer service" some special type of website? No. For purposes of Section 230, an "interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.

Most courts have held that through these provisions, Congress granted interactive services of all types, including blogs, forums, and listservs, immunity from tort liability so long as the information is provided by a third party.  As a result of Section 230, Internet publishers are treated differently from publishers in print, television, and radio. Let's look at these difference in more detail.

 

 Section 230 encourages Internet platforms to moderate “offensive” speech, but the law was not intended to facilitate political censorship. Online platforms should receive immunity only if they maintain viewpoint neutrality, consistent with traditional legal norms for distributors of information.This provision does not allow platforms to remove whatever they wish, however. Courts have held that “otherwise objectionable” does not mean whatever a social media company objects to, but “must, at a minimum, involve or be similar” to obscenity, violence, or harassment. Political viewpoints, no matter how extreme or unpopular, do not fall under this category.

The dominant social media companies must choose: if they are neutral platforms, they should have immunity from litigation. If they are publishers making editorial choices, then they should relinquish this valuable exemption. They can’t claim that Section 230 immunity is necessary to protect free speech, while they shape, control, and censor the speech on their platforms. Either the courts or Congress should clarify the matter.