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Comment by djoldman | Hacker News Reader

> Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person's reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession. [0]

This is interesting as it seems that platforms like Twitter and Facebook have avoided liability through Section 230 for content posted on their websites as the platform did not create the content.

However, now that they seem to be automatically "fact-checking" and/or otherwise creating content with people as subjects, the platforms may be opening the door to liability.

[0] https://www.law.cornell.edu/wex/libel

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But 230 wouldn’t even come into this discussion because the standard of libel for Stossel, as a public figure, is significantly higher. He has to prove that Facebook/the fact checkers had actual malice in stating its claims. Meaning, the Facebook/fact checkers had to be intentionally lying or acting in reckless disregard for whether the statement was true or not.

It’s a more interesting situation if he wasn’t a public figure, but even then, I doubt Facebook would be the one deemed responsible for the so-called libel, it would come down to the fact checked. In fact, in the similar Candace Owens lawsuit (which the court threw out), she sued USA Today and the fact-checking company, not Facebook. And her claims were still thrown out, both because she couldn’t show there was actual malice involved or that the claims that her statement was “false” was untrue. That opinion is here: https://www.documentcloud.org/documents/21068070-owens Owens is of course a public figure, but that wasn’t even a large part of the reason her lawsuit was thrown out on its face.

Stossel is getting press time by suing but he’s a public figure and suing Facebook because a fact checking service elicited an opinion/notation that didn’t have the nuance he wanted is laughable.

I feel like the malice standard makes libel essentially impossible to prove in the US. Are there any cases where malice has been proven? I imagine they would have had to look at private conversations by the accused indicated that they really didn't like alleged victim or something.

"Actual malice" is a confusing term for a layperson because it doesn't mean what it sounds like. It doesn't mean "not liking" the plaintiff. Instead, it is the defendant's knowledge or reckless disregard of the statement's falsity.

> Stossel is getting press time by suing but he’s a public figure and suing Facebook because a fact checking service elicited an opinion/notation that didn’t have the nuance he wanted is laughable.

Really? From his filing it sounds like Stossel has explicit evidence that the fact checkers admitted that he didn't make any false claims and still refused to correct their speech.

We'll see if that counts as "deliberate malice" or no, but it does seem to be a case with much stronger claims than Owens'

On the other hand, from the evidence presented in the filing I would guess Facebook didn't act with deliberate malice; some automated or sound-bite-level manual system caught a bit of the video that did make a false statement and hit the label button. (I haven't seen the original video, but from what I have read I don't think it could be done without a "some people believe X but they're wrong" style statement, X being the false statement.)

So the question is, does Facebook's gross incompetence at fact-checking satisfy the negligence part of the malice definition?

he s a journalist, like the fact-checkers, no? how does 'public figure' work? So, it's like a barber libeling another barber?

(btw it's ridiculous to call them 'fact-checkers' -- all journalists are factcheckers, some are good some bad)

He’s a famous person who has been a prominent television anchor, his being a journalist has nothing to do with it.

The definition of public figure is nebulous, and sometimes it can even be argued a regular person becomes a ”limited purpose public figure” if they are involved in a public controversy.

Stossel isn’t even an argument because again, he used to host 20/20 on ABC and has been a broadcaster for 30 some odd years. He’s a public figure. But using a real world example, I’m not famous, but by any legal standard, I would be considered a public figure because I have a Wikipedia page, I'm verified on every major social network, I’ve appeared on television, and I’m recognized as a prominent person in the various industries that I have worked in. I know this, not because I’ve ever wanted to sue someone for libel or defamation, but because there have been a few isolated incidents where I received harassment/death threats/rape threats via my work addresses (which obligates me to report them to law enforcement), and the amount of fucks police in the US are willing to give about idle threats to public figures are almost zero. I’m generally OK with this (I have only ever reported threats when I’ve been required to do so my company policy), but it is what it is.

Even taking legal protections out of it and just looking policy enforcement, according to Facebook's terms of service, people can call for my death on their platform, provided they don’t tag me. But if someone says, “Christina Warren should just die already,” that’s completely fine according to Facebook's own terms of service, because they consider me a public figure. Now if someone directly tags me, that may or may not be harassment, but even though Facebook isn’t the same as legal requirements, it shows their own rules are different for public figures.

how is this public figure thing relevant when facebook is a public figure itself ? Isn't it actively damaging the journalist's reputation. So it would be OK if e.g. CNN claimed that "scientists say that iphones cause heart attacks"

Assuming a scientist actually said that, that would be fine. CNN doesn’t need to fact-check the scientists statement. Now, if evidence comes out that iPhones don’t cause cancer and CNN refuses to mention that there are refutations or disputes about that OR if CNN finds out affirmatively that those claims are false (the scientist admits they lied or retracts their statement) and doesn’t issue an on-air clarification or retraction (and if it was found that the scientist admitted to lying, that would almost certainly necessitate a retraction), CNN could be sued for defamation. That’s actually essentially what Dominion and others are doing with their lawsuits against Fox News and Newsmax and OANN.

You’re not wrong that there could be a damage done to the public figure/journalist's reputation. There could. But on the basis of New York Times vs Sullivan (a landmark Supreme Court decision and one of the most important first amendment cases), that doesn’t outweigh the free speech rights of the press. Moreover, the public figures by their nature, have more access and ability to respond to a defamatory claim, because they gave their own platform and reach. That’s why the standards of actual malice and reckless disregard are so high.

This is from a website with a very good definition of libel law (https://www.freedomforuminstitute.org/first-amendment-center...):

> The different standards exist because public figures are at the center of matters of public concern–matters that the press should report on as part of its “watchdog” role on the government. If journalists could be punished for every error published about a public figure, they might avoid reporting on controversial subjects that concern the public. The public would lose access to crucial information. > > Also, public figures generally have greater access to the media in order to counter defamatory statements, and to a certain extent seek out public acclaim and assume the risks of fame.

yeah i m talking about the case when it's a lie (which is what stossel claims). Also it seems the case you mention applies to public officials or people running for office, which doesnt seem to be the case here

The category isn't public "officials or people running for office." If you carefully read the preceding comments, you'll see that "public persons" is the phrase that was used. I think perhaps you read the "public" part and misunderstood what the phrase means in legal writing. In legal writing, it's a bit nebulous as mentioned, but includes well-known people commenting on matters, people who become unintentionally well-known for their thoughts, in addition to the obvious stuff like politicians.

Host of a nationwide broadcast? 100% a public person and not even close. It's a dumb lawsuit and a good lawyer would have told Stossel as much.

according to the wiki of the referenced case

> it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation—publication of a false defamatory statement to a third party—he or she must also prove that the statement was made with "actual malice",

But as i understand it is now being applied to celebrities as well

TBH i only know stossel from his twitter and videos that i see in libertarian channels (i m not in the US). Didn't know he was so famous in the US. I wonder whether that (international audience) counts for defining what is "public official"

Formerly famous. He's one of those formerly small-L libertarians like Dennis Miller who took hard right turns after 9/11.

It's highly fact specific.

"Determining who is a public or private figure is not always easy. In some instances, the categories may overlap. For example, a blogger who is a well-known authority on clinical research involving autism may be considered a public figure for purposes of controversies involving autism, but not for other purposes. "

https://www.dmlp.org/legal-guide/proving-fault-actual-malice...

This is correct, but by any standard or definition, Stossel is a public figure. He's a television host (and was a correspondent and then co-anchor for one of the biggest newsmagazine programs in the US), he's been an author, a syndicated columnist, he’s won 19 Emmys. He’s an incredibly famous libertarian (I would argue he was probably the most prominent libertarian commentator in the media until he left television). He's a public figure. The fact that he’s on this website with a headline that includes his name is proof that he’s a public figure.

But yes, it can be very fact specific.

In news organizations fact-checkers are separate roles or department to independently check the statements made by journalists in their work. It's an additional layer. Same as there are grammar and style checkers although journalist can write correctly, some better some worse. And journalists work is not limited to checking facts alone.

At least that was the case before the checkers started to get fired to save cost because online you can easily change errors after publication.

in this case the fact-checkers are acting as journalists, though i dont know where that distinction lies. Otherwise , facebook would look very much like a news organization with a fact-checking team

He likes to sue.

He did a interview on wrestling years ago. He went in doing his cutesy made for tv interview. The kind of interview that idiots seem to like. That in you face, and I'm going to out you.

He kept on calling it fake, which it is.

A idiot wrestler got fed up up with the guy, and slaped him. An open slap that most of us might slough off.

In court, he claimed long term physical/psychological damage from the slap. He claimed his hearing was permently damaged. Just a whiny baby with a monetary motive?

He got a nice fat settlement, from the wrestler, and WWF.

(I don't condone any violence, and never understood fake wrestling, but Stossel got his taste of easy judicial money, and him suing doesn't suprise me.)

Most of us would slough off getting slapped twice by an angry 6'6", 270 lbs professional athlete?

And getting slapped in the ear can cause permanent damage. Look up "boxing someone's ears" for more info.

What happens if he gets slapped again after the settlement? Like if Bill Gates slaps him. Pays whatever. Slaps him again etc.

So some grown man play acting as a fighter to help keep people's mind off anything that might improve their situation reacts with violence to being called out on it, but Stossel is the "whiny baby" doing "cutesy stuff idiots seem to like"? That's rich.

> I don't condone any violence

No, you just talk about "an open slap that most of us might slough off", and call someone a "whiny baby" for not sloughing it off.

Stossel was once a legit anchor/news-program talking head.

Some time ago, I don't know when, he _really_ went off the deep end into libertarian la-la land. Suing and aggressive legal maneuvers are practically a sacrament to such hardcore libertarians.

Stossel has always been a hardcore libertarian. It's one of the reasons he's so great. Even if you don't agree with everything he says he presents an underrepresented point of view in journalism.

> all journalists are factcheckers

I don't think so. Most journalists these days start with a agenda and cherry pick facts to make their stories. It's so obvious it's laughable.

While this might not work in the US, it might work elsewhere. Other countries have legal protections for platforms from their users too, but that usually have lower standards for proving defamation of public figures than the US.

That's why David Irving sued an American historian in England. It did him no good.

If the facts alleged in Stossel's initial filing are true, they are fairly damning against the defendants[0]. The Candace Owens initial complaint, by contrast, is kind of a mess [1].

Re: Owens: One of her claims was that a manager at one of the defendant companies had once held a prominent position at CNN, and CNN has an obvious Democrat bias. Even if all of those things were true, the suit doesn't allege any sort of causal connection, not even "upon information or belief," between that claim and her being demonetized or otherwise sanctioned by Facebook. Her complaint was 50 pages long with 50 pages of exhibits, and yet a lot of it was used just to make political grandstanding statements. It just reads like a poorly-drafted lawsuit meant to generate publicity insofar as it exceeds a lawyer's duty not to file frivolous nonsense. For what it's worth, the judge also seems to kind of give Owens short shrift by asserting in his judgment that no reasonable person would conclude the words "hoax alert" and "false" attached to Owens' post imply that Owens was intentionally lying. (This was backed by case law involving claims of "blackmail" to be judged more hyperbolic and rhetorical than alleging the commission of a crime. The two cases seem pretty different. Thin gruel, IMO.) Regardless, I can't help but think that Owens really did fail to state a claim.

Stossel's claims are much tighter. He published two videos on Facebook, and both were "fact checked" by one particular organization.

In the first video, Stossel claims that climate change, forestry management and other practices are each partly responsible for the 2020 CA wildfires to varying degrees. Per the complaint, the defendants then attached a "fact check" claiming that Stossel did not mention the effects of climate change on the fires. Stossel made efforts to contact the fact checking organization and interviewed two of the three employees who were listed as reviewers for his video. Neither of them had even seen the video, and each admitted after watching the video that it was factually accurate, though one later changed his mind after Stossel again contacted the manager of the organization. Moreover, the article cited as the reason for why Stossel's post was flagged lists climate change and forest management as two partial reasons for wildfires, quite similar to Stossel's actual claim.

The second item in the complaint involves another video with a similar fact pattern. Stossel again secured an interview with one of the putative reviewers, who concluded the factual representations in the video were correct. IMO it's less damning than the first, but interesting if true.

Stossel does seem to state a claim, he does seem to allege sufficient facts to prove actual malice (e.g. posting a fact check without reviewing the underlying material with reckless disregarding the truth). It's also only 25 pages with the relevant exhibits in the text, and tells a much clearer story as to why Stossel was injured by this.

I still would give him long odds at winning, but he might actually survive a motion to dismiss and get to discovery. This one at least doesn't seem like a stupid publicity stunt.

[0] https://docs.reclaimthenet.org/John-Stossel-vs-facebook.pdf

[1] https://www.factcheckzuck.com/assets/10-19-2020-Owens-Compla...

Stossel has spent his whole career as a hype man promoting disingenuous partisan/ideological bullshit† and carrying water for those who profit off other people’s misery. It’s really hard to take his claims here seriously.

† e.g. in middle school 20 years ago one of my “environmental science” (!) teachers spent 2 class days playing a Stossel video whose premise was more or less: America is the #1 best at everything because wealthy business owners are awesome, and countries whose governments do anything to thwart them are universally evil failures. For example, Hong Kong = awesomely successful because yay business, but India = terrible and impoverished because boo, government. The video was perhaps the most absurd, infantile thing ever presented in 13 years of public school (a high bar!).

The parent posted relevant details to the case at hand.

Your comment doesn't really add to the conversation and suggests that your opinion as a middle-schooler 20-years ago about a video that has nothing to do with this case is a more important thing for us to consider. I disagree.

My point is that everything I have ever seen Stossel write or show on video, decade after decade, is more or less misleading, disingenuous, often slanderous propaganda. With that well-established reputation, it is hard to take what he says at face value; we can safely assume that his comments in this case are also distorted and self-serving.

Given the difficulty of winning a defamation lawsuit as a public figure in the USA, I would be shocked if he prevailed here.

Speaking of “slanderous propaganda”, I can’t help but feel reminded of the quote about accusing the other side of that of which you are guilty. With the view you’re expressing here, its actually easier to understand how the “fact-checkers” fact checked the video false without even seeing it. The job of a fact-checker is not to be a judge of character, nor is it to fact check based on assumptions.

The outcome of the case really doesn't depend on whether you saw (by compulsion) a couple of segments he did for the (I guess) highly partisan and propagandistic ABC News two decades ago. His continued employment there for years after whenever those videos you watched were published would seem to indicate that his reputation suffered no serious harm as a result of them, as would his subsequent employment at Fox Business. (It's theoretically possible that Facebook could say he has no good reputation capable of being defamed, but, again, the facts, including those pleaded in the filing if true, would seem to cut against it.)

As I said in GGGP, I agree that I'd be surprised if he won, but I think this has some likelihood of going to discovery. With high-profile defendants, documents and depositions are sometimes the goal.

Democrat bias -> Democratic bias, please

https://en.wikipedia.org/wiki/Democrat_Party_(epithet)

No, thank you.

I don't know from where you are getting that libel in most US states requires malice.

IANAL, but I am pretty sure it's just saying something provable to be factually wrong that can be demonstrably linked as the precipitating cause to damages against the plaintiff.

Fun fact. In Sweden, telling something truthful can be libel. A Swedish politician was sentenced for libel for pointing out, in a Facebook post, that a legal representative in a civil lawsuit she was involved with had earlier had been sentenced for a crime of sexual nature involving children. (I can't recall the details). This was a true fact, but since she said it with the intent to defame (according to the court) she was sentenced for defamation.

Under English common law, truth is no defense against libel. "Mansfield said it, it's true as the Bible,/The greater the truth, the greater the libel." But since late colonial times, American precedents allow truth as a defense.

I'm sure there is not an exact equivalent between Swedish "defame" and English "defame", but wouldn't airing any negative news about a person be defamation? If Löfven was found sexually abusing a child in flagrante delicto, wouldn't it ruin his otherwise fairly good reputation to let the public know this fact?

It certainly would.

https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan

>acting in reckless disregard

Negligence is a motive. Considering the influence facebook has a compelling argument could be made on the chilling effects of a "sleepy code writer".

The fact checking services are wrong, a LOT. They are not ideologically neutral, particularly the ones used by Facebook.

For a specific example of the abusive and censorious nature of this business model, see Glenn Greenwald's recent article on the subject, specifically in regards to the blanket denunciation of the New York Post's Hunter Biden laptop story as Russian disinformation. Greenwald isn't a right-wing hack, and in fact he is aggressively pro-Palestinian, anti-war, and has been a loud critic of Bolsonaro despite being a resident of Brazil.

https://greenwald.substack.com/p/new-proof-emerges-of-the-bi...

Edit:

Yes, a parade of downvotes without any refutations. Pay no attention to the fact that the guy in charge of censoring and fact checking operations at Facebook is a lifelong Democratic Party operative who literally worked for the Democratic House Majority PAC, and before that Senator Barbara Boxer, before going to work for Facebook.

https://www.linkedin.com/in/andy-stone-7575b34a

Narrative violation detected. -4 applied to your social credit score. Have a good day, comrade.

> Greenwald isn't a right-wing hack, and in fact he is aggressively…

Correct, he isn’t and technically more liberal than a lot of folks on the left, but then again the left is no longer liberal. He speaks truth to power without regard to political party/leaning and is therefore generally hated now by the left because he doesn’t follow the orthodoxy.

I'm receiving downvotes too, but keep sharing your thoughts with details! I provided a life experience based on changing political parties, and people obviously aren't comfortable that they have created an illiberal web.

Wow, this is a great point that I hadn't previously considered. These platforms can even conceivably get away with content removal more easily as ToS violations without stepping over the line to become publishers. But if one considers a fact-check as its own content, then that may become a defining point in a future ruling or examination of 230.

I imagine there's a great case to be made that fact checks are platform sponsored content (if a fact check is viewed as an analysis of the content along with verdict [ie. "Misleading"], easy to view that similarly to the plethora of analysis content [reviews, summaries, etc] populating all social media platforms). I'm fascinated to see how this will play out.

There is no platform/publisher distinction in the law. Section 230 of the Communications Decency Act of 1996 [1] was originally meant to be a carve out to allow websites to host comment sections without being considered the "speaker" of those comments and thereby being subjected to the speech restrictions in the rest of the law. The rest of the law has since been struck down.

When people are mad about 230, what they're really mad about is the 1st Amendment.

Is Facebook the speaker when it applies a fact check? Maybe but it doesn't matter much with respect to 230 offers minimal protection beyond the 1st Amendment. And as others have stated, the bar for libel against public figures is VERY high in the US.

[1]https://www.eff.org/issues/cda230

> When people are mad about 230, what they're really mad about is the 1st Amendment.

Exactly. Facebook are exercising their 1A rights to call him misleading. This is not complicated.

1A doesn't protect you from libel laws.

The bar for proving libel is so incredibly high in the United States, it's generally easier for a man to jump to the moon than for a public figure to file and win a libel case.

"People said damaging things about me" is just one of the conditions that have to be met.

Yeah the whole 230 discussions is at best naive and at worst a cynical attack on 1A rights by no nothing dead enders and authoritarian leftists. The same coalition that brought you the drug war, the satanic panic, and the global war on terror.

Uh, both the War on Drugs and War on Terror were started by Republican presidents (Satanic Panic is a little harder to unravel), with broad support (at the time, anyway) on both sides of the aisle. If you're going to spout nonsense, at least pick examples consistent with your nonsense.

The current president was both the author of the notorious crime bill and the precursor to the patriot act. He did this in alliance with lawmakers from the nominally opposing party.

I just want to point out that the person you're responding to did not refer to this coalition they're describing as belonging to any political party.

> But if one considers a fact-check as its own content, then that may become a defining point in a future ruling or examination of 230

I believe that is why they, and other platforms in a similar position, use 3rd party "fact checkers." To try to legally skirt that. "It's not our content/fact check, it's from this unbiased third party. Don't look at us." They seem to have borrowed "plausible deniability" from some 3 letter agencies since it legally works well for them.

> To fight the spread of misinformation and provide people with more reliable information, Facebook partners with independent third-party fact-checkers that are certified through the non-partisan International Fact-Checking Network (IFCN). Since we do not believe that a private company like Facebook should be the arbiters of truth, we rely on fact-checkers to identify, review and rate potential misinformation across Facebook, Instagram and WhatsApp. Their work enables us to take action and reduce the spread of problematic content across our apps.

https://www.facebook.com/journalismproject/programs/third-pa...

Do Facebook pay for those “third-party” “fact-checks”?

I doubt they'd need to: the third parties get traffic and prestige from participating

That's... not what 230 is about at all. This myth just recycles itself again and again. Why do people insist on repeating it?

Section 230 immunizes a web content company from liability for statements made ON ITS SERVICE BY THIRD PARTIES (to wit: you can't sue Facebook for what its users say on it).

No one here thinks Facebook is immune to a liability claim for its own speech. No one is invoking 230 to defend it. 230 is not applicable. Why do people keep insisting it's some kind of boogeyman that can be "revoked" to get "big tech" in line? It doesn't apply here.

Apparently not? See 'If you said "Once a company like that starts moderating content, it's no longer a platform, but a publisher"' here: https://www.techdirt.com/articles/20200531/23325444617/hello...

they dont need to be a publisher to be sued for defamation

I suppose that depends on whether the courts agree that "flagging" is a form of original content, and is defamatory.

i wonder if the courts take into account how things have changed since 230 became law

>i wonder if the courts take into account how things have changed since 230 became law

One would hope that the courts follow the law. Anything else would be inappropriate, don't you think?

Via proprietary and non-transparent algorithmic content recommendation engines, they have all been publishers for a while now.

FTFA: To be a bit more explicit: at no point in any court case regarding Section 230 is there a need to determine whether or not a particular website is a "platform" or a "publisher." What matters is solely the content in question. If that content is created by someone else, the website hosting it cannot be sued over it.

Yes, it seems pretty obvious they are free to fact check if they want to but they also become responsible of all these new fact check contents they push.

Only if the fact checkers acted maliciously. Just like how when people say false things, they generally aren't held accountable for it. [1] Why are you so eager to hold fact checkers to a higher legal standard than the people they are responding to?

It would truly be a bizarre universe if saying things that are damaging to other people were permitted, but fact-checking those statements were not. Fortunately, we don't live in such a universe.

[1] If they were, most of our political class would be in prison.

Facebook is careful about this. On the fact check in question, Facebook only says "Missing Context" and "Independent fact-checkers say this information is missing context and could mislead people." Only if you click through to the independent site do you see a specific claim labeled as misleading: https://climatefeedback.org/claimreview/climate-change-fores...

If Facebook paste “this information is missing context and could mislead people” under every single post/story, it would still stand true but it would be bad for the business.

That's true, I guess, but we're discussing legal issues here. I think that would still be legal even though it would be dumb.

If they were to do it to every post, they probably wouldn't be libeling anyone, but if they do it selectively, I think they may be guilt of libel.

As an example, imagine that Yelp or AngelList posted "beware: this business may be perpetuating a fraud". If they did it to every business, it would be a general warning, not singling it out; but if they did it to a small proportion of businesses, and it turned out that many of the 'targets' were not committing fraud, it would be libel.

Only if there was evidence of malice.

It seems like there would be evidence of willful blindness, which is more or less equivalent to malice.

This is probably not up to the legal standard, but I suspect you know that. There are valid reasons to not support big tech, but is this case really one that you want to advocate?

I don't have anything in particular against 'big tech', but this (Facebook) case does seem like an example of (enabling) libel via willful blindness to me. I also think Yelp and other sites are close to, or past that line as well (in how they enable extortion of many small businesses by fraudulent 'reviews').

Merriam-Webster defines "Willful Blindness" as:

>"deliberate failure to make a reasonable inquiry of wrongdoing (as drug dealing in one's house) despite suspicion or an awareness of the high probability of its existence"

The case law would also appear to go against Facebook: https://en.wikipedia.org/wiki/In_re_Aimster_Copyright_Litiga...

Am I missing something (IANAL), or is that case about copyright infringement?

I guess we'll find out whether or not this case against FB will move forward, but I'd be willing to put down a wager that FB will prevail. Are you equally confident in your position?

That case was indeed about copyright infringement, but:

>"Courts have held that defendants cannot escape the reach of these statutes by deliberately shielding themselves, from clear evidence of critical facts that are strongly suggested by the circumstances, understanding that those who behave in such manner should be treated as those who had actual knowledge.

I will bet on anything, but only at odds which result in a positive expected outcome. The question is what terms and odds you're giving.

So he then proceeds to sue the fact-checkers. There is definitely liability here from which social media have been shielded so far

The fact checker is included in the lawsuit.

If burning a flag is speach, then so is shadow banning, deplatforming, cancelling, and the whole lot.

If that speach is defamation, then it should also be actionable.

There are some infamous blog posts that will tell you that 230 protects websites no matter what happens. But when bad things happen and the law protects bad actors, then it's a bad law.

The current case doesn't really have anything to do with Section 230 that I can see. Section 230 protects Facebook from being sued for what other people post on their website. It doesn't impact content that they themselves create. If Facebook publishes an illegal blog post or attaches its own content... I mean, it would at least need to make a case that it wasn't making the fact check itself, that this was an API or something.

I'm not sure if they could pull that off or not. But in any case, Section 230 has never been a blanket law that says websites can't be sued for anything. It shields them from liability for 3rd-party content, that's it.

Realistically, the reason this lawsuit is probably going to fail is because it doesn't look like the fact check in question is actually defamation. I'm not a lawyer, maybe Stossel will surprise me. But my immediate take is that I think he has a weaker case than Owens', and her defamation claims got pretty solidly rejected, and not for any 230 reasons.

> The current case doesn't really have anything to do with Section 230 that I can see.

It does. Though NY Times v. Sullivan maybe has more to do with it, and the basic definition of defamation may have the most do with it.

> Section 230 protects Facebook from being sued for what other people post on their website. It doesn't impact content that they themselves create.

Facebook’s fact-check annotation facility, like its newsfeed, is, as I understand it, algorithmically-driven promotion of third-party submitted content.

It is not, in any case, first-party content (well, I mean the actual standarized portion of the annotation that links the article to the thing fact-checked is, but its association with a particular bit of content is driven by the third-party submission.)

> Realistically, the reason this lawsuit is probably going to fail is because it doesn't look like the fact check in question is actually defamation.

That's the most likely reason why it will fail against the creator of the fact check article. It’s failure against Facebook os overdetermined.

I'm interested as to whether the courts would consider this fact checking content as Facebook's or a third-party's. If the third party did not explicitly cause the content to be put in this specific "fact check" area, did they create it for the purpose of libel?

Going to an extreme: if Facebook pays Acme Fact check for some text that says "John is a bad lawyer" and facebook then posts that text on John's page, isnt Facebook liable whether or not they actually created the text? The text wasn't posted by Acme, it was posted by FBook.

My bad, I didn't realize that Facebook's fact-checking worked that way, I thought this stuff was an in-house decision just using 3rd-party sources to help inform it. Thanks for the correction.

Given that information, I should revise: Section 230 will protect Facebook from liability for a 3rd-party-driven fact check, but even if it didn't this still doesn't look like it rises to the level of defamation for Facebook. So even if Section 230 was repealed, Facebook would still likely win this case (although Section 230 applicability will probably allow them to dismiss it faster).

I don't want people to think that this is obviously defamation, but Section 230 happens to be blocking Facebook from consequences. This being 3rd-party content makes Facebook's position much stronger, but I still think they would most likely win this case even if Zuckerberg himself had labeled the article as misleading under the direction of Facebook's board.

Rights protect everyone - including bad actors. Any definition of a bad law that includes rights as such is euphemistically referred to as a "different understanding".

Does nobody remember Blackstone's Principles these dats in their zeal to collect scalps? A good law is one which does not punish innocents - that should be where the lines are always drawn.

230 is not a right, it's a special exception afforded to some businesses, and not to others (newspapers). i dont think it should be held that highly. It was a temporary measure to help the internet grow, now the internet IS the media of mass manipulation

>230 is not a right, it's a special exception afforded to some businesses

Yes, section 230 is not a right. But it is afforded to everyone[0]:

There is nothing in Section 230 that applies solely to big tech. Indeed, it applies to every website on the internet and every user of those websites. That means it applies to you, as well, and helps to protect your speech. It's what allows you to repeat something someone else said on Facebook and not be liable for it. It's what protects every website that has comments, or any other third-party content. It applies across the entire internet to every website and every user, and not just to big tech.

[0] https://www.techdirt.com/articles/20200531/23325444617/hello...

Whether the content is third-party or first-party is nowadays the same in the eyes of the end user. They 'll believe a moderated story on facebook or a moderated story on nytimes.com with almost equal frequency. Technicalities of the law aside, why the first is more equal then the other is baffling to me

>Whether the content is third-party or first-party is nowadays the same in the eyes of the end user.

Is it? As an end user, I am acutely aware that the above is from "cblconfederate" and not Hacker News.

>They 'll believe a moderated story on facebook or a moderated story on nytimes.com with almost equal frequency.

The question isn't whether or not "they" (whoever "they" might be) believe it, the question is "Who is the source of the story?"

If I say that you are a wife-beating, child-molesting, puppy-kicking monster, do you assume that Hacker News is responsible for that?

Once you answer that question, perhaps you'll understand things a little better.

Edit: Added context. Fixed punctuation.

> If I say that you are a wife-

If you sent the content to a newspaper and they posted it in the relevant section the newspaper would be liable. Those things aren't as distinct as they were made to be.

What i had in mind is the fact that on facebook you have a mix of posted newspaper articles (which are first-party elsewhere and thus someone may be legally liable for them) along with official/governmental first parties, politicians, heads of state, scientists , and random users most of which cannot be legally challenged, at all. And this is done intentionally because facebook has made great effort to get its users to read / post news articles so as to make itself a news source. Plus they apply filters and annotation to give the false impression that the information they provide is the "correct one". This is "publishing via moderating"

I think 230 makes a very basic ontological distinction between "people whose opinion matters/has impact and therefore must be regulated (press)" and "people whose opinion doesnt matter (random users)". That is not so. This allows malicious actors to hide behind "i'm just a user".

>If you sent the content to a newspaper and they posted it in the relevant section the newspaper would be liable. Those things aren't as distinct as they were made to be.

You ignored the point. Which is I am responsible for what I say, regardless of where it's published online, not the platform that hosts my words.

>What i had in mind is the fact that on facebook you have a mix of posted newspaper articles (which are first-party elsewhere and thus someone may be legally liable for them) along with official/governmental first parties, politicians, heads of state, scientists , and random users most of which cannot be legally challenged, at all. And this is done intentionally because facebook has made great effort to get its users to read / post news articles. If it was just user posts people would have left.

Who says that "official/governmental first parties, politicians, heads of state, scientists , and random users" can't be legally challenged?

All section 230 does is keep you from suing the third party. You can sue any or all of the folks you mention every day of the week and twice on Sundays (okay, probably not at all on Sundays, as most civil courts in the US are closed on Sunday, but I trust you take my point).

>These assymetries no longer make sense imho. This is a new era where everyone, personally is a publisher.

And you can sue anyone and everyone for defamation if you wish. I'm sure your lawyer will absolutely adore you if you do. Just make sure that retainer check doesn't bounce!

>I think 230 makes a very basic ontological distinction between "people whose opinion matters/has impact and therefore must be regulated (press)" and "people whose opinion doesnt matter (random users)".

Actually, Section 230 makes no such distinction. If you are the party making the statement, Section 230 does not apply. Please see here[0] for more details.

[0] https://www.techdirt.com/articles/20200531/23325444617/hello...

> Which is I am responsible for what I say, regardless of where it's published online

I believe if it is published in one of those "letters from our readers" section (where the newspaper makes editorial decisions) then they are responsible, is that not so ?

I know that article btw. It's basically a list of reasons why 230 makes no sense in this age where the internet and algorithms is the dominant medium. Content is overabundant now, it doesnt matter anymore, what matters is how you shape the access to it.

and to your other comment, FB and nytimes should be held to the same standards: either both of them are absolved or responsibility or both are not. Think of it this way: nytimes hires journalists to create content that promotes their favourite soccer team. They affect opinions. Facebook hires programmers who use their abundance of "user generated" content (which covers the entire spectrum of soccer fans) and mold their algorithms to promote their favourites.they affect opinions

The effect is the same on society, why are they treated differently? the mechanisms shouldn't matter. If FB (or HN) is to be held at a differnt standard, they should either be "100% neutral except illegal pics" or be forced to have full transparency on all their algorithms and editing decisions.

(Btw i agree with what you said about the law, i just think it's an absurd legal situation for this day and age)

>The effect is the same on society, why are they treated differently? the mechanisms shouldn't matter. If FB (or HN) is to be held at a differnt standard, they should either be "100% neutral except illegal pics" or be forced to have full transparency on all their algorithms and editing decisions.

What I post on HN or Facebook or in a comment section of the NYT is my responsibility, because I am the source of those posts.

What the NYT publishes as news or opinion is their responsibility as the source of those items.

As for the algorithms in use, that's one of the reasons I quit FB seven years ago. But such algorithms are irrelevant to who authored a particular piece of prose.

The author might be liable for libel/defamation (assuming that can be proved), but the platform that hosts their content is not.

I'm not sure why you're having such a hard time with this. And I'm going to stop trying to explain it to you.

Good luck!

>If you sent the content to a newspaper and they posted it in the relevant section the newspaper would be liable. Those things aren't as distinct as they were made to be.

But I didn't send that content to a newspaper, did I?

I posted it here on HN. Is HN responsible for my words here? Should you be able to sue HN for them?

Answer those questions honestly, and you will be enlightened.

One thing that seems to be being ignored on this section 230 (by everyone) is the clause that reasonable action to remove illegal content. If in this case the content is libel, and Facebook did not attempt to remove it after being contacted, that would make them liable.

>One thing that seems to be being ignored on this section 230 (by everyone) is the clause that reasonable action to remove illegal content. If in this case the content is libel, and Facebook did not attempt to remove it after being contacted, that would make them liable.

Except it's not libel until a court says it is.

If I defamed/libeled you right here, right now and HN didn't immediately delete my post, would that make HN liable and hence able to be sued?

If you think the answer to that question is "yes," let me know I will make statements that could be considered to be libelous by a court. Then you can sue HN (and me too, if you like. But blood from a stone and all that, eh?) and see what happens.

What do you think?

> If I defamed/libeled you right here, right now and HN didn't immediately delete my post, would that make HN liable and hence able to be sued?

That doesn't matter, and that's not what I said. What matters is what section 230 says, not what you or I think should or shouldn't happen. What matters is that if you did so and I contacted HN and informed them that illegal material is being hosted and published on their service, if they made no reasonable effort to remove it, they would be liable. That is the only point I'm making. You're arguing against someone else's (hole riddled) point, not my point.

In your case I wouldn't report it because I don't particularly care, but in Stossel's case, he did and they left the content up. He has a leg to stand on, if, as you said, the fact check is found by the court to actually be libel.

FYI I'm pretty sure making a positive statement claiming intent to put illegal content on HN is a bannable offense, and if you actually did say anything libelous, regardless whether HN responded to a request, I could sue you, and win, because you've explicitly confirmed that what you may or may not say in response to this was in fact intended to be libel. I'm not a litigious individual and don't really care what you say about me, but being candid, this line of discussion you're engaging in is reckless and stupid.

>In your case I wouldn't report it because I don't particularly care, but in Stossel's case, he did and they left the content up. He has a leg to stand on, if, as you said, the fact check is found by the court to actually be libel.

But it ain't libel unless and until the court says it is. Which makes your argument specious at best.

>FYI I'm pretty sure making a positive statement claiming intent to put illegal content on HN is a bannable offense,

Firstly, libel is not illegal content. It's a civil tort. And sure, I can imagine that HN might ban someone for actual illegal content (torrent links, links to child porn, etc.)

But as I understand it, the First Amendment here in the US (where HN and I are both based), there are just a very few circumstances where my speech could make me civilly liable and almost none which could make me criminally liable.

As such, you're living in a fantasy world.

As for actually libeling/defaming you, given the context of this discussion, even if I made knowingly false statements, it would likely be clear to any jury that my statements were exemplars rather than actual attempts at libel.

What's more, I don't know you. I don't know your name or anything about you.

Since I can't identify you, I have no way to determine whether anything I say about you is true or not. Should I loose a stream of invective and accusations at "betwixtthewires", it really can't be libel, since there's no way for me to do actual harm to you.

Even more, as I said, context matters. I tell you what, if you're game (and have the cash and the will to hire lawyers), I will say awful things about you here.

If you're down for it, I wish you luck with your lawsuits. Because you're gonna need it.

That assumes anything they did was actually libelous which is... unlikely.

Claiming a journalist makes "false claims" and is "misleading" could be injurious to their reputation as a journalist. Which would hurt them in their business or profession.

It's not a slam dunk for him by any means, but I can understand why he filed.

The bar for libel is high in the US. Something could be false, misleading and injurious to reputation and not be libel. Particularly if the person in question is a public figure, which is defined very broadly.

Ironically John Stossell has actually been caught making false and misleading claims previously. He had to know filing this would bring those episodes back up, so I don't know why he filed.

Same reason Trump filed so many pointless libel suits. So that we would talk about them.

That is interesting.

So... basically we are waiting until they get their fact checking wrong against a wrong person?

This must happen eventually.

But you could argue that so many public persons openly lie and even declare that "they can lie to public since they are not under oath", that it is hard to punish a company that tries to do right by fact checking a lot of falsehoods. It is reasonable to assume that when you correct a million falsehoods you will make some mistakes.

Certain famous persons are expected to lie, so it wouldn’t injure their reputation in the way that (the above) defamation is defined. A politician, for example, might pursue such a case only for publicity.

To be clear, if it's a public figure, then just getting the fact checking wrong is not enough to be defamation. There has to be "actual malice" which BASICALLY just means they knew they were wrong or should have known they were wrong. If they can show that they were just following the information that was publicly available then they can make mistakes without losing a lawsuit.

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