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Big Tech wants to eat their cake and have it too

By PoliticsJanuary, 2021January 18th, 20245 min read

Is Big Tech (Facebook, Twitter, Instagram, YouTube etc) a “publisher” or a “platform”? The question that any highly paid lawyer for Big Tech would ask is “which one keeps our legal liability to a minimum?” and then seek to make the case that they are that one. The alternative question: “which legal definition do our activities as a company most closely match?” has little practical value.

This thinking is that if you are deemed a “publisher”, then you have legal responsibility for what you publish (i.e. all the stuff posted on social media), so that’s an non-starter. The other option seems to be being a “platform”, so let’s go with that. But what is a “platform” anyway? I guess it’s a place on the internet where there is user-generated content that is published (by the people who write them of course, not the “platform” itself) for others to see and engage with. So a “platform” takes all care, but no responsibility.

This is actually about Section 230 of the Communication Decency Act, which says that

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

and which grants immunity from liability for the “speech” of others. But in fact, there is no legal definition of “platform”. It’s probably just a word invented by lawyers for Big Tech which they define to mean “not a publisher; not liable”. This is a product of our binary world, you can either be X or Y, hence the need to create an alternative term to “publisher”, but businesses like social media are actually a bit of both (interestingly, some opinions maintain that section 230 applies to them no matter what their formal or legal definition).

But enough of the legalese, because in response to regular online flame wars between groups of commenters with – shall we say – divergent opinions about certain contentious issues, Big Tech has taken on some responsibility (don’t confuse that with anything approaching legal responsibility) for some of what is posted on their platforms.

So which one is it: are they responsible or are they not? If they are responsible, what does that mean and what does it imply legally? If they are responsible for removing objectionable content, what standard is used to determine what is objectionable? To what extent does this limit “free speech”?

This is where Big Tech wants to eat their cake and have it too.

The new woke world of cancel culture has taken the notion of human rights to a new level, and has created “the right not to be offended”. Whether or not such a thing is indeed a legitimate “right”, it has a serious problem with enforcement because it is both subjective and arbitrary. If one person has a right not to be offended, everyone else has an obligation to be aware of what might offend them. That means everyone has to avoid posting anything that might offend anyone! Is that practical?

So what posts deserve to be shut down? In practice, the answer seems to be: whatever posts offend the sensibilities of those with the power to shut them down. And by what (defensible) standard are posts censored? The nebulous “community guidelines”.

Under this “standard”, the entire TalkRADIO YouTube channel was shut down because some commentators were in breach of YouTube’s new guidelines that prohibit the spread of “medical misinformation that contradicts local health authorities”. The fact that local (and global) health authorities change their minds and sometimes get it wrong doesn’t seem to matter. That is the policy.

What concerns me even more is the censorship of comedians, such as Titania McGrath, who make a living taking the piss out of woke culture. The brilliant comedian and satirist Rowan Atkinson nails it when he describes cancel culture as a medieval mob looking for someone to burn. Social media encourages mob-like behaviour, and once a mob (real or online) gets started, it’s mighty difficult to calm them down. Millions of near strangers interacting online has led to the demise of the “joking relationship”. Making a joke on Twitter is “fraught; it can be re-tweeted and screen-capped and before long, the joke’s reach has snowballed beyond the joke-teller’s intended context”.

The ability to laugh at ourselves is almost a lynchpin of society. When the woke mob start lynching comedians, I worry.

Here is another example of Big Tech wanting to eat their cake and have it too: the arbiters of appropriate speech on platforms are the same businesses that created the platforms that facilitate and monetise said speech, which it’s a bit like the inmates are running the asylum. They have such huge influence on what is and is not permitted, but to whom are they accountable? Certainly not the people. And what of free speech? I will save that for another post.

Politically, the people who set policy and craft these “community guidelines” are progressives who want to recreate a fairer society, yet their goal is founded on a deeply capitalist system that created these Big Tech behemoths in the first place. Another piece of cake, anyone?

This was also posted at [Substack].

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