Is Facebook legally a publisher?

In short, if Facebook or Twitter is going to be making editorial decisions about what appears on their platforms, then they are really acting as publishers.

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The ongoing debate over whether social media companies like Facebook and Twitter should be considered platforms or publishers is really starting to heat up. In fact, things are getting so hot that the White House has stepped into the middle of the debate, suggesting that the time has finally come for companies like Facebook and Twitter to admit that they are really publishers hiding behind all the legal protections granted to them as platforms. In short, if Facebook or Twitter is going to be making editorial decisions about what appears on their platforms, then they are really acting as publishers. If they are making decisions about censoring certain types of content, banning certain individuals from their platforms, or somehow throttling or blocking certain types of content by using algorithms, then they are no different from traditional publishers like newspapers or magazines.

Publisher vs. platform

The difference between “platform” and “publisher” might sound like semantics, or a bunch of techno mumbo-jumbo, but it actually carries huge legal implications for companies like Facebook and Twitter. You see, as a “platform,” these social media giants can hide behind all the legal protections of Section 230 of the Communications Decency Act. They can’t be sued, for example, if any slanderous content appears on their website. While tech companies still have a responsibility of care and duty to remove any content that violates federal criminal laws, they can’t be held be responsible if some crazy guy or gal starts spreading misinformation or trafficking in conspiracy theories. However, POOF! All of the legal protections are removed once they are considered to be publishers and not platforms.

Examples of publishers and platforms

The easiest way to think about this dichotomy is by thinking about newspaper companies like the New York Times or Philadelphia Inquirer. These companies make editorial decisions about what news to publish, have editorial boards, publish op-ed pieces, and make every effort possible to fact-check (and fact-check again) every single thing they publish. If they publish a slanderous or defamatory article about a high-profile individual, they can expect to be sued in court. Now, think about companies like Verizon, AT&T or Comcast. These are platforms, in that they primarily serve to facilitate communication and distribute information. They can’t “ban” you from using their services, even if you are trafficking in all kinds of conspiracy theories. If you want to talk about “false flag” conspiracy events with your crazy uncle on the phone, nobody is going to block or throttle that conversation. You won’t get a letter from AT&T saying that you are no longer a customer. Using the analogies above, social media companies are basically saying that they are acting much more like Comcast than the Philadelphia Inquirer. As a result, they should be afforded all the legal protections of Section 230. But that doesn’t really hold water, when you consider that Mark Zuckerberg has even admitted that Facebook sometimes acts as BOTH a platform and publisher. And, as numerous U.S. politicians have pointed out, Facebook has a notable bias towards liberal, left wing and Democrat-friendly political ideologies, as well as a notable bias against conservative, right wing and Republican-friendly political ideologies. In this regard, Facebook is much like the Philadelphia Inquirer deciding to support a particular candidate for political office – this is something that publishers do all the time, but that platforms do not.

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And don’t forget about Net Neutrality

Making things even more complicated is the fact that the big social media giants seem to be talking out of both sides of their mouths when it comes to issues like Net Neutrality. Facebook, for example, wants to be sure that none of its content is blocked, throttled or moved to the “Internet slow lane” by any broadband provider. Twitter talks a big game about how important it is to protect freedom of speech and diversity of thought when it comes to Net Neutrality, but then appears to adopt a different tack entirely when it comes to censoring, cracking down on or banning content.

Tilting towards publisher

So it’s time for the big social media giants to finally choose which side they are on. They can’t be both a publisher and platform at the same time, no matter what kind of legal weasel words they choose to use to justify their decisions. It doesn’t matter if it’s a human or a machine algorithm making the editorial decision – if you are blocking or censoring some content that doesn’t agree with your values and viewpoints, then you are a publisher. Period. It’s time for social media companies to wake up to that reality and be prepared for the consequences.

socialmediahq.com - If Social Media Companies Are Publishers and Not Platforms, That ...

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