Substantial costs of doing business in the newspaper, and other media industries are the expenses intrinsic to checking the content they provide to readers for accuracy and paying for liability insurance. This insurance protects media companies in the event they are sued for libeling someone in the news stories and opinion pieces they publish. It is difficult to win a libel case because it is necessary to prove that the publisher knew that the content in question was untrue before they published it. Yet, because damage awards in libel cases can be huge money, publishers work to provide accurate, sourced content and protect themselves with insurance coverage. These things are costs of doing business for them.
Newspaper and media companies are considered publishers.
Currently, purveyors of content on the internet are not subject to these same risks. Section 230 of the Communications Decency Act, enacted in 1996, provides liability protection for internet companies. Section 230 shields websites from liability for content created by them and their users. That means internet companies can monitor and moderate their sites with no trepidation of being sued for any untrue content and disinformation they post. Facebook™, Twitter™, Google™ and countless other internet companies have grown and thrived with immense help from this special protection. There is no cost of doing business for libel protections, and no fear.
Internet companies are considered platforms, NOT publishers.
Here is the pertinent language from Section 230:
“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.”
Recently the CEO’s of facebook™ and Twitter™ testified before a U. S. Senate committee on this topic and user privacy issues. These companies are frantically arguing and lobbying to keep this special protection in place to maintain their advantage.
Concerns from legislators on the right stem from more and more examples of online posts from conservative users being censored, blocked and/or de-monitized with no transparency or accountability. Who are the fact checkers and censors, and what are they basing their actions on?
Some on the left are also concerned about transparency, and there is bipartison support for looking into user privacy concerns and anti-trust claims against the dominant players. In June the Justice Department released reform proposals to update the outdated immunity for online platforms under Section 230.
Whether you call it moderating, control, modify, choose, direct, or select. If an internet company is doing any of those things, they are editing what appears on their websites.
That makes these companies publishers, just like any other media company, NOT simply platforms. They should not be exempt from the same libel regulations.
The 1st Amendment to the Constitution provides for freedom of speech. There are some restrictions to this freedom that have been instituted and accepted over the years, such as the danger of deceptively yelling ‘fire’ in a crowded building. But these exceptions are few. If a company seeks to describe themselves simply as an internet platform, they should only intervene in the event of posts that meet these established restrictions.
Making decisions to censor posts that are based on a users opinions and beliefs makes them a publisher. After all, these companies originally promoted themselves as marketplaces of ideas, places online where ideas of all stripes could be discussed openly and fairly.
As a simple platform, a company would allow almost all posts. Proving the veracity of a post is not the concern of a basic platform. Neither the poster nor the content should make any difference. As a platform provider, unless a post is indecent and falls within any of the constitutionally accepted restrictions it should be allowed.
Fairness can only be attained when all ideas are allowed equal footing. When people or algorithms are used to flag or censor certain posts, but not others on a topic, bias becomes inherent in the process. Let other posters respond with their own opinion and set of facts. Then, as in all other aspects of life, users of the platform can decide for themselves which poster’s ideas and arguments are the most accurate, truthful and persuasive.
If they want to be defined as platforms and keep their special protections they must not make decisions to block posts based on whether they are true, accurate, or adhere to certain strictures. But these platforms are no longer simply platforms, they have become content publishers, and should be subject to the same laws as all other media.