Online Services and the Infowars Brouhaha

There have been some calls to regulate services like FaceBook, Twitter, et al so they are not able to unilaterally shut down users over things like political opinions.

Since I lean heavily libertarian I am generally opposed to any increase in government regulation of anything.  Fortunately, it would seem that all the regulation needed is already in place.

Here’s the approach I would recommend.

“Common Carriers,” like your phone service (landline or wireless) or most Internet Providers have very broad protections against liability for content carried on their service.  If someone says something actionable on the phone, the phone service is shielded from liability for that since they have no control over what someone says on the phone.  There are limits on this, but as a general rule, that’s the way common carrier protections work.   But it only works because the common carrier exercises no control over content on that carrier or it exercises only limited control (I have seen some common carriers pull the plug on habitual violations of copyright–downloading pirate videos and the like).

Once a platform starts exercising control over content, however, they’re no longer a common carrier.  If they pull some material over its content it can be argued that content that remains is because they choose to have it remain.  And, thus, they are legally liable for that content.

So, if companies like FaceBook, Twitter, Apple, Spotify, etc. want to remove material based on the content, then they should be legally liable, then, for all the remaining content since they are picking and choosing.  Let them, then, either make sure they chase down every actionable statement anybody makes on their platforms or let them and their deep pockets be party to the lawsuits over said actionable content.  Either of those things will tend to drive up their costs of operation.

This requires people willing to pursue lawsuits and lawyers willing to take those cases but given the deep pockets of at least some of those companies, they might well be attractive to lawyers willing to work on contingency.

Make pursuing biased content expensive by holding them accountable for what they do keep and the market can take care of the rest.

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2 thoughts on “Online Services and the Infowars Brouhaha”

  1. yes, in general – but who sues? Those who are defamed & libeled against. But the “press” has long been able to lie about public conservatives, so it’s not clear that this will work in practice with many, if not most, judges & lawsuits.

    A judge ruled that Trump cannot block a twitter troll — because of free speech in public.

    I think it would be cleaner for there to be a Public Digital Utilities act, to establish the Digital Utilities Commission and NOT allow the Big Tech folk to be fully private. Treat them more like monopoly electricity providers, as long as they have monopoly market share.

    1. In general the media only deal with “public figures”. And the bar for libel is quite a bit higher when it comes to public figures, especially political figures. And they are written by “journalists” who are trained to know just where the line is.

      Things like FaceBook and Twitter have millions of posts, written by people who have no such understanding of where the line between “a heated exchange” and “libel” is. And yes, I have seen posts slung around that rise to actionable levels. Normally in a forum like FaceBook it’s not worth pursuing in court because of things like internet anonymity (is the person’s profile information accurate?) and the amount you’d be able to get is…not worth going after. No lawyer’s going to agree to represent on contingency when the most you’ll ever get is a couple hundred bucks–and nobody’s going to hire a lawyer on hourly when the lawyer fees will be higher than any settlement you ever see. But make a deep pocket organization like FaceBook responsible for those posts as well and the picture changes drastically.

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