Zuckerberg, Facebook and the Responsibility of Publishers

This post is about law and social media.

Zuckerberg has not been willing to take responsibility for the lies distributed on Facebook. And by now everybody but Donald is aware that social media are the major repositories of fake news. And that’s not an accident.

Broadcasting stations, newpapers and other publishers must carefully avoid publishing libel and defamation on their media. That requires them to make real effort to prevent publication of scurrilous material.

Until the 90s, those rules arguably applied to the internet. But then communications law removed publisher liability entirely for “interactive computer service[s]”:

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.

As Dan Solove comments, courts interpreted the statute:

to immunize any ISP [internet service provider] or website for comments made by their users – even when the ISP or website has knowledge the comments are defamatory or invasive of privacy and take no steps to do anything about it.

Some of the results have been outrageous. The statute removed liability even when internet providers knew stories were false. In one infamous case, an anonymous source posted messages falsely linking a small businessman to the Oklahoma City bombing. A crushing barrage of angry callers made it impossible for him to do business.  AOL removed the posts when notified, but variations were reposted immediately and the victim couldn’t get AOL to block them, post retractions or even act more quickly. The courts sided with AOL. And Congress moved in only to protect copyright owners.

In this wild west of unsubstantiated internet allegations, who’s responsible? It’s generally worth suing only corporate defendants who can pay for the damage, which usually means the ISP.  And immunizing fraud on social media makes it harder to hold other media responsible. Once a story is “out there,” other news organizations are stuck. Without a good way to hold companies responsible for checking facts, gossip, lying and fake news dominate the industry.

Recent hearings made clear that Americans find it outrageous that Zuckerberg and his company have no responsibility for the garbage they “share”. It’s time to change. There is no reason for giving huge internet companies, vastly wealthier than print media, advantages that print doesn’t share. But Facebook won’t accept responsibility for most of the lies it distributes.

Radio and television stations, newspapers and other publishers are legally responsible. The very famous case of New York Times v. Sullivan came to the Supreme Court because the Times published an ad taken out by leaders of the Civil Rights Movement that had some inaccuracies. Those who placed the ad in the Times and the Times itself shared liability to anyone injured. The law at the time violated the First Amendment in other ways, which the Supreme Court corrected in that and subsequent cases. But if constitutional requirements were satisfied, publishers were and are responsible.

The deeper meaning, however, is that this problem illustrates that there is no such thing as purely private action. Law always either allows, forbids, or empowers some people over others. One cannot get to the bottom of our economic or social problems without looking at the interplay between public and private decisions, no matter what free market ideologues try to tell you.

— This commentary was broadcast on WAMC Northeast Report on December 3, 2019.

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