Facebook has admitted it is a publisher not just a neutral technology platform. Here’s why this 180 degree turn is big news and what the catch is.
This week attorneys representing Facebook told a US court that the social media giant is a publisher and as such it makes editorial decisions.
This is big news. Facebook has repeatedly described itself as a neutral platform with no traditional journalistic responsibilities.
The volte face comes as Facebook defends a lawsuit, filed by an app startup. Six4Three alleges Mark Zuckerberg developed a “malicious and fraudulent scheme” to exploit users’ personal data and force rival companies out of business - according to reporting by The Guardian. Facebook, meanwhile, is arguing that its decisions about “what not to publish” should be protected because it is a “publisher”.
In court a Facebook lawyer, even drew comparison with traditional media according to The Guardian: “The publisher discretion is a free speech right irrespective of what technological means is used. A newspaper has a publisher function whether they are doing it on their website, in a printed copy or through the news alerts.”
In the court case about access to users’ personal data Facebook argued that decisions about data access were a “quintessential publisher function” and constituted “protected” activity, adding that this “includes both the decision of what to publish and the decision of what not to publish”.
Until this Monday Facebook has repeatedly insisted it is platform and not a publisher.
- “We are a tech company, not a media company.” - Mark Zuckerberg, Luiss University, Rome, August 2016 via Reuters
- “We’re very different than a media company. ... At our heart we’re a tech company. We hire engineers. We don’t hire reporters. No one is a journalist. We don’t cover the news. … we’re a new kind of platform.” - Sheryl Sandberg, in an, October 2017, via Axios.
- I view us as a tech company because the primary thing that we do is build technology and products. …I agree that we’re responsible for the content, but we don’t produce the content. I think when people ask us if we’re a media company or a publisher, my understanding of what they’re really getting at is do we feel responsibility for content on our platform. The answer to that, I think, is clearly yes. But I don’t think that’s incompatible with fundamentally at our core being a technology company. - Mark Zuckerberg, April 2018 testimony before the US Congress via YouTube.
Facebook as publisher: why it’s big news
Since launch the big tech giants have billed themselves as mere conduits of information who cannot be held liable for that content – in the same way BT cannot be sued over obscene phone calls.
This argument is paper thin when set against the reality that both Google and Facebook operate teams to investigate "flagged" content and remove it where they feel it is justified. And where we are at the mercy of their algorithms which determine the information served to us.
The digital duopoly of Google and Facebook maintain their dominance in advertising by selling advertising space alongside user-generated content. They profit the most from it and should shoulder some of the responsibility for it.
Given that Google, Facebook et alia are mining every last scintilla of our digital footprint it’s hard to stomach the claim that these platforms are truly passive conduits.
Social platforms including Google, Facebook, Snapchat and Twitter monetise, host, distribute, produce and even in some cases commission material. Last month Facebook launched Grow: a quarterly magazine for business leaders.
Fake news and YouTube's inappropriate advertising placement debacle has robbed them of any plausible deniability that they are media organisations.
I have long argued here and here that social media platforms need to be reclassified as publishers. Additionally they need to preserve the positive benefits the collapse in costs of generating and distributing information has brought including freedom of speech and protection of civil liberties.
Facebook as publisher: Where’s the catch?
If Facebook admitting it is a publisher sounds too good to be true, you're probably right. Natalie Naugle, Facebook’s associate general counsel for litigation, defended the company’s legal strategy against Six4Three in a statement to the Guardian, saying:
“Facebook explained in today’s hearing that we decide what content to make available through our platform, a right protected by Section 230. Like many other technology companies, we rely on the discretion protected by this law to police bad behaviour on our service.”
What is section 230 of the Communications Decency Act?
In 1996 a time before webmail, YouTube, Facebook, LinkedIn, Twitter, or Google; a time when, in the US just 22% of adults went online US regulators signed into law section 230 of the Communications Decency Act.
“The internet and other interactive computer services offer a forum for a true diversity of political discourse [and] intellectual activity,” they eulogised.
US lawmakers 21 years ago couldn’t have foreseen the Internet’s hand at expediting terrorism or cyber crime, or at facilitating online sex trafficking.
Neither could they have predicted that, far-from nurturing the desired diversity of political discourse, our minds would be narrowed by the cognitive bias exacerbated by the vagaries of social media platforms’ algorithms.
We like to think of the Internet as a utility. A pipe from which to upload and download near-limitless information. A utility on a par with water, or gas or electricity.
It’s a notion clung to by tech giants, too. Enshrined within section 230 of the Communications Decency Act runs the line:
“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.”
Tech giants have, until this week, positioned themselves as passive conduits for the actions of others, facilitating a variety of activities and thoughts, but not responsible for any of them.
So there you have it. This week Facebook finally admitted it is a publisher. At the same time saying it isn’t. Last month Facebook launched a new print magazine. Except that it says it didn’t. According to the Drum Facebook’s PR team says Grow is simply a piece of marketing collateral. A brochure even. Glad that's all cleared up: you?