Global social media regulation is coming – Alex Jones is just the start

Jones was livid. “Tell folks, it’s the most censored program in the world for a reason,” he said in a video. “Jones is dialled in! Jones knows who the enemy! He understands the globalist program and he knows how to take action!”

(Remember: Jones stated that the 11 September 2001 terrorist attacks were a conspiracy and the 2012 mass shooting at a school in Connecticut in which 20 children and six adults were killed was a hoax. And note that “globalist” is considered racist code for “Jew.”)

The banning highlighted the issue of free speech, media law and social media company policies. Jones may think of himself as trapped like a rat in a censored cage of his own private media now that social platforms have banned him, but it is Twitter’s recent livestream of a Smashing Pumpkins concert that will also be a bigger turning point in the debate.

The removal of Jones and the airing of the musical performance, among other recent events, show that it is only a matter of when, not if, social networks will effectively – if not also legally – be media companies rather than neutral tech platforms.

(For this column, neither Facebook, Twitter, nor the US Federal Communications Commission responded to requests for comment on the issues that I discuss.)

Media versus platforms

In the United States, the legal issue depends on Section 230 of the 1996 Telecommunications Act (informally called the Communications Decency Act). The law states 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.”

The law exempts a “provider or user of an interactive computer service” from liability as long as action is taken “in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable”.

In other words, interactive media services are not the publishers of the material that people distribute over them, and they are not liable for material as long as they try to remove anything objectionable.

The first question: what is the difference between a “media company” and an “interactive computer service”?

A media company is a “one to many” operation. Take The Drum. The company produces a magazine, a website, and a mobile app as well as numerous events and awards shows. Everything is created, edited, and transmitted in one-way communication. (I may write this biweekly column, but The Drum publishes it.) Media companies are responsible for what they transmit.

Under the law, social media platforms based in the United States are interactive computer services because they provide many-to-many communication. People talk to each other using an intermediary service, and the service is not liable for what people post. The users, not the companies, are the publishers.

The second question: what is “objectionable”? According to the law, it is whatever “the provider or user” deems it to be. Private social networks can typically operate within whatever terms of service they create while media companies must adhere to specific government laws and regulations.

Social media networks are private companies that can do what they wish. If they want to ban someone for any reason, they are free to do so. Alex Jones is trapped in a cage of his own making.

Why social platforms are media companies

The real issue, however, is far more complicated.

YouTube hosts countless user videos but also produces original programming such as the Karate Kid follow-up series Cobra Kai. Twitter sends user tweets but also airs Smashing Pumpkins concerts and will require certification for advertisers to run spots on specific hot-button political issues.

Facebook has removed ads promoting a cure for homosexuality and the page of a military officer in Myanmar who is accused of genocide. The company is trying to figure out a moderation policy when billions of posts are made every week while hiring reviewers and globally launching its Watch platform with news, entertainment shows, and ad breaks.

All of these actions are those of media companies because someone, somewhere is making an editorial decision on what to publish.

Facebook COO Sheryl Sandberg repeatedly says that Facebook is not a media company. Mark Zuckerberg told the US Congress in April that Facebook is a technology company. But in a California courtroom in July, Facebook attorneys argued that the company is a publisher making editorial decisions that are protected by the US First Amendment.

Just note TechCrunch reporter Sarah Perez’s tweet of this photo in January 2018 with a comment: “We’re not a media company!”

What is the real reason that social networks are terrified of being seen as media companies, which are liable for what they transmit?

Tech companies in general aim to grow quickly and cheaply by automating as much as possible and hiring as few people as possible. (Algorithms never get sick or need pension benefits.) Online content moderation – which would be required of any media company – is impossible to do well at scale, and any attempt to do so effectively would cripple the business model.

Social networks are media companies that use the protections of interactive computer services to make billions of dollars.

The important issue of copyright

Imagine if social networks were media companies and faced even a hypothetical small $1,000 fine every time that the platforms publicly distributed copyrighted material. No company could afford the millions of violations or the number of workers needed to prevent such publication.

There is another law that protects them. The 1998 US Digital Millennium Copyright Act saves interactive computer services from the consequences of the copyright violations of users as long as the platforms remove material in breach when notified. In 2010, YouTube won a $1 billion US lawsuit from Viacom, which charged that the video platform was liable for hosting infringing videos. The decision was upheld in 2013.

The story is different in Europe. Also in 2013, a German court found that YouTube was not liable for copyright infringement but noted that the company had not taken down infringing videos quickly enough.

In June 2018, an Austrian court ruled that YouTube is liable for copyright infringements and is not a neutral platform that is not responsible for uploaded material. A different German court is also currently considering whether YouTube is liable.

After all, how many times have you watched a copyrighted music video uploaded to YouTube with this text in the description: “No infringement is intended”? (As if that makes a difference.)

The start of social media legislation

In June, the US Federal Trade Commission invited public comment on whether Congress should change the law in light of new technologies and other “broad-based changes in the economy”.

Lara O'Reilly’s CMO Today reported that a significant part of the testimony – now available on the FTC’s website – criticises the power of the digital duopoly of Google and Facebook. And the pushback only starts there.

In BuzzFeed News, Steven Perlberg and Alex Kantrowitz wrote that the idea of government regulation of the two digital powerhouses was floated by media executives at a February 2018 board gathering of the publisher trade body Digital Content Next.

“There is an increasing level of concern at the intersection of the duopoly’s control over the growth in digital advertising and their dominance and control over the data collection ecosystem that drives Google and Facebook’s profits,” DCN chief executive Jason Kint told me.

“As more and more issues of distrust in platforms emerge including Google’s unwillingness to cooperate on the implementation of GDPR, our board has asked DCN to communicate on behalf of its interests and their consumers who put their trust in their brands.”

US senator Ron Wyden also told Recode’s Kara Swisher there should be “consequences” for platforms that do not remove people like Alex Jones.

“What I’m gonna be trying to do in my legislation is to really lay out what the consequences are when somebody who is a bad actor, somebody who really doesn’t meet the decency principles that reflect our values, if that bad actor blows by the bounds of common decency, I think you gotta have a way to make sure that stuff is taken down,” he said in the interview.

Germany’s antitrust watchdog may take action against Facebook after finding that the social media giant abused its market dominance to gather data on people without their knowledge or consent.

“Data privacy is the aspect of Big Tech that is being regulated by the EU but not the US,” David Carroll, the American professor of media design at The New School who played a key role in exposing the Cambridge Analytica scandal, said. “This is where we need to see change.”

The UK and US are already investigating how social media was used to influence the UK Brexit vote and the US presidential election in 2016. Zuckerberg has refused to testify before the UK parliament on that issue – an act that might get him arrested should he ever set foot in the country. Google CEO Sundar Pichai has also declined to appear at the US Senate to discuss the same topic.

Such chutzpah will not be taken kindly by legislators. And it might lead to even more legal and regulatory changes.

A return of the Fairness Doctrine?

In the United States, terrestrial television and radio broadcasters need a licence. The legal reason is that only a limited number of usable frequencies exist, making the use of that scarce space an issue of public interest and subject to government regulation. The radio and TV spectrum, in effect, is owned by the government and leased to broadcasters.

One of the most important significant regulations of the US Federal Communications Commission (FCC) was the Fairness Doctrine, which lasted from 1949 to 1987 and mandated that broadcasters discuss matters of public interest and present contrasting views on those issues.

The revocation of the Fairness Doctrine, critics argue, paved the way in the 1990s for biased outlets such as Fox News on cable television and the rise of conservative talk radio throughout the country.

Fast forward to today. If you “like” one left-wing Facebook or YouTube video, the algorithm will show you more. The same occurs if you engage with right-wing material. And the world falls further down the partisan rabbit hole as people consume increasingly extreme media that separates them from the other side.

Now, I have no evidence that anyone, anywhere is considering a revival of anything like the Fairness Doctrine. But I would not be surprised to see such an occurrence in any future social media legislation or regulations. The issue is of vital importance.

The potential future of social media

Today, Facebook and Twitter have become both interactive computer services and media companies. They are both platforms for people to share funny cat photos and channels for one-to-many broadcasts of original programming.

“Both.” That is the reason the present confusion. The major social platforms are trying to have it both ways. Some company activity is protected under US law and other actions are clearly those of media companies. The legal line is fuzzy because law has yet to catch up with technology.

Existing US law was written in the 1990s, when fans of the classic US sci-fi TV show Babylon 5 discussed the latest episodes on Usenet, and computer-savvy teens asked "A/S/L?" in ICQ chat rooms.

Today, the president of the United States can influence geopolitics with a single tweet, and TV companies are airing shows on a platform that was originally created to rank the attractiveness of girls at Harvard University. The world has changed rapidly in the last 20 years, and the law needs to reflect that.

I am loathe to make marketing predictions because most turn out to be wrong, and the biggest industry news in a given year, as Ad Contrarian Bob Hoffman noted, is always what no one could have predicted. But I have a few optimistic hopes.

The UK, US, and EU will explore whether major social media platforms are media companies. When the full truth of Brexit and the 2016 US presidential election is known, they will have no choice but to act, especially if the political winds change after this year’s US congressional election. The EU will also get involved because – as GDPR shows – it has the least tolerance for internet shenanigans.

Social media companies will try to cut a deal. They will offer to separate their activities as interactive computer services and media companies through either subsidiaries or divisions and ask for different laws and regulations to apply to each. Their proposals will be declined.

Social platforms will accept that they are media companies. Facebook, Twitter, and Youtube – and perhaps others – will be pulled kicking and screaming, but they will eventually agree to the obvious reality that everyone but them accepts. Existing US law will be changed. (After all, Zuckerberg did tell the US Congress that Facebook is “responsible” for what the social network distributes.)

Social media networks will be found liable for copyright infringement. Entertainment producers will ask for action. Governments will acquiesce – and it will remain to be seen whether social platforms will be able to adapt.

We will see a return – at least in spirit – of the ideas of the Fairness Doctrine. The US FCC might not formally resurrect the regulation, but governments and social media users will see the value of having balanced discourse both online and offline.

It is time for social media platforms to accept responsibility for the enormous changes that they are inflicting on society. After all, the last thing we want is for Twitter’s bird logo to be used as a bullet with butterfly wings.

The Promotion Fix is an exclusive biweekly column for The Drum contributed by global marketing keynote speaker and workshop facilitator Samuel Scott, a former journalist, consultant and director of marketing in the high-tech industry. Follow him on Twitter. Scott is based out of Tel Aviv, Israel.