In practice, say I set up an anonymous social media account and publish false/defamatory statements about myself, then I sue the tech company and john doe (as the poster), what exactly can/could the tech company do to have prevented liability? Seemly they would have to somehow change their systems so posts are reviewed by editors prior to publication to minimize legal risk and potential liability.
The argument is that the services desire to keep the protections of 230 but act like publishers that are not afforded the same protections.
On the other hand, phone calls are not persistent and one to one, not one to anyone.
Publishers can publish (or decline to publish) whatever they want, but they do have some responsibility for what they say. Libel, copyright infringement, and threats all carry consequences even if the publisher is not the author. Publishers can be as biased as they want.
Is FB a publisher or a common carrier? What about Google? Youtube? Instagram? Twitter?
(The answer is that they are kind of either depending on the exact part of the organization. And they are having it both ways: control without responsibility.)
It is abjectly insane to label a tweet as something Twitter, the company, is "saying". If we're retooling the law to orient it toward that definition, then the inevitable endgame, after the avalanche of litigation, will be that the concept of posting text on social media or blogging platforms is dead. It kills Web 2.0 in its entirety. It regresses the United States back to the dark ages of a completely one-directional media, where the best you can do as an outsider is to submit a letter to the editor.
If there were a company printing and distributing, to any passing person on the street, fliers with content provided by the company's clients, would they have any legal liability for what their clients put in the fliers? That seems very similar to what Twitter does. Certainly closer than their being treated like a phone company or mail carrier, which they don't much resemble (email provider? Yeah, sure, they do). Perhaps in that situation the printing & distribution company would also have no liability, I don't know.
However, you would probably say I start to become liable if I erect a giant wall on which all of these flyers are posted, and allow illegal content to remain hanging there even when I'm informed of it and aware it's illegal. This gray area is exactly what Section 230 is designed around.
It's totally unreasonable to expect a platform operator to act as the speaker of a post the moment it is posted. But after becoming aware of a post and the reasons it may be objectionable, they start to gain a sort of post-hoc liability.
If someone prints out child porn, glues it to a yard sign, and plants it on your front lawn, you should probably not be liable for arrest starting that instant. But if, after coming and going and seeing it over and over for a week, you make no efforts to remove it or report it, then you should probably be liable for arrest. This is exactly the logic behind Section 230.
I'm not following how having a machine do the work absolves the owner of responsibility. It seems like the same kind of "normal thing, but with a computer!" that folks in tech circles usually mock when it shows up on patent applications or when someone decides we need a new law to cover something that's already covered by existing laws, simply because now it's with a computer.
If you manage to replace all the components of an ordinary publisher with robots, seems to me the owner of those robots ought to be treated just like an ordinary publisher. Accepting, storing, reproducing, and distributing as broadly as possible (oh and don't forget slapping your own ads on) others' work sure seems like publishing to me.
The fact that it's happening on a computer isn't the important part, and indeed if that were the only difference it would be a ridiculous argument. The important part is that the operator of the machine has never seen the content.
It's unreasonable to be liable for content you aren't aware of, and thankfully the status quo is still that you are not (outside of a few unfortunate cases). Effectively most of the internet couldn't exist if this protection were eliminated. Hacker News might not be able to exist. If you were liable for everything any user might possibly say, regardless of whether or not you notice it, would you run a discussion forum like this? A web host? A messaging app?
Once you're aware of e.g. illegal content, of course you should be liable.
Twitter also acts as a publisher by exercising editorial control over if and where tweets actually appear to each user.
Twitter would have a stronger legal and moral argument against further regulation if they acted as a neutral intermediary. For example, they could establish a policy of only removing content if required to do so by law.
I'm not sure if that is a great analogy for what Twitter et al. are doing in regards to content policing, but there is some kind of argument there.
For example, Internet services which host user-generated content might be able to retain liability protection only if they also provide some reasonable degree of transparency and accountability. Clearly document their editorial policies and algorithms, and provide a formal appeals process for users who were censored.
Only the ones that act like publishers, curating the content they allow and disallow. The ones that behave more like the telephone or postal system would not have the liability, right?
I don't think anyone wants Twitter to be responsible for every tweet. What most people want them to do is be more like they used to claim to be "We are the free speech wing of the free speech party"
https://metro.co.uk/2018/09/06/twitter-admits-shadowbanning-...
https://en.wikipedia.org/wiki/Section_230_of_the_Communicati...
I don’t understand how people can post on a heavily moderated forum like HN while demanding that moderation be effectively made illegal. It’s like people hate Facebook and Google so much that they mindlessly get onboard with any form of retaliation against them regardless of the actual consequences.
As much as I find the idea of "illegal content" galling (I love freedom) I'm not so idealistic that I fail to recognize that freedom of speech cannot be an absolute. ("Fire" in theaters; revealing national security secrets; doxxing; there are limits. I'm glad I'm not on the hot seat when it comes to nailing them down: I don't run open internet forums, for example.)
If you don't have a way to pass that responsibility onto the actual speakers then you must shoulder it yourself, no?
Whether or not current systems can survive that is less important to me than the establishment of formal responsibility for one's speech.
Edit:
We try to make Facebook broadly available to everyone, but you cannot use Facebook if:
You are under 13 years old.
You are a convicted sex offender.
We've previously disabled your account for violations of our Terms or Policies.
You are prohibited from receiving our products, services, or software under applicable laws.But, for example, if Dang selectively removed posts such that the remaining posts slandered someone in a way that none of the individual posters intended, I believe Dang would be the only one in the chain liable for the resulting slander, not the posters. But under current law, Dang has protection under 230, so no one could get charged for the resulting slander
That's an extreme hypothetical case of course.
1) ok, in the US anyone can get sued and there seem to be some specific things people can sue and win on, but that is outside the scope of 230.
It's almost like 230 has been a bait and switch ploy. With 230, mega social media corps developed, with nothing else to protect them against liability.
But instead, we could have had decentralized systems that made liability impossible. And if stuff like this goes forward, maybe we can. Someday, anyway.
Especially since allowing providers to increase (automated and best-effort, but not comprehensive human) moderation withour incurring general liability for content was the explicit and overt justification for Section 230, because the kind of complete human editorial control expected of publishers in traditional media was viewed as preventing scalable systems on the internet (where traditional media had other scaling limits that make content liability far from the limiting factor.)
> But instead, we could have had decentralized systems that made liability impossible.
Decentralized systems probably wouldn't have made liability impossible, just ineffective at it's objectives, because no matter how many operators were ruined by liability. the content would still thrive and you'd never hit enough operators.
> I don't tend to think tinkering with intermediaries' incentives about content is the thing that will get us there, because there are so many other practical advantages that people have perceived in the more centralized services.
Do you think otherwise about that?
Also, I'm not advocating any "tinkering". I'm just not optimistic about relying long term on legal protection. Even for the US, it's been fragile, and not anywhere near effective enough.
I was just being wistful, speculating that, without §230 protection, we'd have ended up with a system that didn't need such protections. With intermediaries that were totally isolated from content, with absolute anonymity for users. That is what I was imagining in the mid 90s.
I can imagine more or less centralized services that could handle content which was otherwise end-to-end encrypted and anonymized. And could make money doing it, as VPN providers get paid by Orchid users via an Etherium-based currency.
Users would have the tools to filter what they see. But nothing could be removed, and nobody could be prosecuted (or persecuted).
How we might get there from current social media, I have no clue.