On April 10, 2018, Mark Zuckerberg, founder and chief executive of Facebook, took a chair beneath an array of Senators to answer for the uneasiness his company’s behavior had been giving the public. The testimony comprised a broad variety of concerns – from user privacy to election meddling, to misinformation and an alleged bias in combatting it. The latter concern has fascinating legal implications we will discuss today.
More pointedly speaking, allegations that the large social media companies’ community guidelines have been enforced selectively have sparked a public controversy. The accounts of some particularly controversial speakers, for better or worse, have been shut down, and others report that the volume of exposure their content gets has suddenly dwindled. Pundits, for the most part on the right wing, have strongly condemned the companies, and ensuing arguments tend to hit all the philosophical tenets of the classical debate over free speech.
The First Amendment does not ensure anyone’s place on a private platform; it only restricts the government from discriminating with regard to speech, including, but not limited to, hate speech. For the most part, it is left to market pressures to correct any perceived bias or wrongdoing on the part of the social media companies. There are other areas of the law, however, that social media companies have some potential to run afoul of. Critics and commentators have brought up both antitrust law and publishing law issues. Although, there is debate over the likelihood that companies like Facebook infract upon either, yet the potential does exist.
During the recent congressional hearings, there was considerable discussion about whether Facebook qualified as a monopoly. When Senator Lindsey Graham asked who Facebook’s biggest competitor was, Zuckerberg’s answers were not clear. Another senator insinuated that Zuckerberg was deceptively enlarging the market definition to appear less powerful in it than his company in fact is at this time. Antitrust laws, and the qualifications for being considered a monopoly, are defined, but still have a bit of linguistic wiggle room. Though unlikely, Facebook’s characterization as a monopoly, and its consequent disintegration, could provide the answer that certain voices are looking for now. More competition with regard to platforms would theoretically bring robustness and vibrancy to the marketplace of ideas.
A second, and perhaps more effective answer to the perceived problem came through a proposal by Senator Ted Cruz. He suggested a modification in publishing law that would have a strong impact in tort. If the parameters by which social media companies allowed and suppressed information were determined adequately subjective, the companies could and should, he reasoned, be regulated as publishers rather than as platforms, as they are currently. Section 230 of the Communications Decency Act distinguishes the two. The key conceptual distinction between the two is that platforms are definitionally neutral and indiscriminating in the content they allow, an assertion Zuckerberg wasn’t quite willing to make during the hearings. Publishers, on the other hand, make a subjective assessment of the content they disseminate, whether it be based on quality, viewpoint, or their combination. The key distinction between platforms and publishers is that the former, being neutral and thus unaccountable for the content itself, is not liable for any torts. The latter, which exercises its editorial discretion, is legally liable. Imagine a Facebook (or any other social media website) exposed to legal liability, for example, for defamation. In essence, it would hardly be the same marketplace. So, unless social media websites drastically changed the structure or nature of their product or services, they could risk giant setbacks. If the goal is freer speech, the increased monitoring of content under constant fear of lawsuits, would certainly be averse to it. The comment seemed more to be a warning that the government has the power to cripple the company if it is thought to be abusing its position as a neutral platform.
The current situation is a cautionary tale for smaller businesses that wish to disseminate or curate information to the public. At our law firm, we assist clients with legal issues related to e-commerce, business, technology, and internet laws. Please don’t hesitate to contact us to set up an initial consultation.