ACCC Google Facebook defamation

On his way out the White House door, Trump has thrown another bombshell, this time threatening to blow up the internet by treating the big tech platforms as publishers rather than innocent carriers of the words of others.

Sure, it’s lame-duck Trump, throwing shi… um, stuff at the wall to see what sticks and the adults in the room in Washington are busy hosing it down. But his call has widespread, even cross party support.

It was only last January that now-President-elect Joe Biden was similarly calling for platforms to lose their immunity, saying: “For Zuckerberg and other platforms, it should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.” (He’s been more cautious since.)

In Australia, this month, back-bench Nationals MP Dr Anne Webster has urged the government to bring forward legislation to regulate platforms like Facebook for the information they publish. (Communications Minister Paul Fletcher has said: no.)

Trump is using the arcane practices of US military financing to strong-arm Congress into overturning the almost quarter-century long regulatory fiction that enabled social media — Section 230 of the Communications Decency Act, which states:

“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.”

Back in 1996, the wording was designed to protect carriers and internet service providers. But the platforms that now dominate the net — from Google search to Twitter and Facebook — all built their power by squatting in a corner of that immune space and, having squat, built empires.

Global clout came through US trade policy with undertakings for immunity in bilateral agreements, including the Trump-era deal between the US, Mexico and Canada. Under the Broadcasting Act, Australia gifts similar immunity to online platforms unaware of the nature of the content they distribute.

Traditional publishers have always hated this regulatory asymmetry: editorial care brings penalties; lack of care brings freedom. While publishers have to invest in subeditors, proof readers and lawyers to carefully parse each bit of content, the platforms don’t.

Unfortunately, the “make ‘em publishers” camp has always had a touch of H. L. Mencken’s aphorism about well-known solutions to every human problem: “neat, plausible, and wrong.”

It’s proponents have conflicting goals. Some want better gatekeepers. Some don’t want gatekeepers at all.

Put Trump in the no gatekeeper camp: his current beef is that since the November 3 election, his tweets claiming voter fraud have come with a disclaimer from the platform. But his unhappiness is not new. Back in May, he converted the “old man yells at cloud” meme into an “Executive Order on Preventing Online Censorship” based on the right-wing talking point that the Facebook and Twitter algorithms act to suppress conservative views.

That’ll be news to anyone who spends time on social media. Since July, The New York Times Kevin Roose has been recording each day’s 10 top-performing link posts on US Facebook pages, showing conservative and right-wing voices — including Fox — generate the most engagement each day. (Facebook disputes the measure.) In Australia, Business Insider’s Cam Wilson reported last month that Sky News has become the biggest news channel on social media.

Still, facts haven’t stopped conservative Republicans from promoting various legislative alternatives to Section 230.

Anne Webster’s call comes from a concern about disinformation. Earlier this year, she was targeted in wild online conspiracies spread on Facebook alleging child abuse. She and her husband sued the author, resulting in a defamation payout of $875,000. Facebook eventually apologised.

In a recent interview with The Guardian’s Katherine Murphy, Webster said: “I’m not saying that holding these platforms to account as publishers is the only answer, but it is the clearest answer that I can think of … I see these platforms really get away with far too much and are not being held to account — so I think that’s got to stop.”

So, closer to the Biden position, reflecting global concerns that the platforms need to do a much better job in eliminating disinformation and misinformation.

What next? On the internet Australia is a rule taker, not maker. Expect the US law to be amended, sooner or later, perhaps with some platform liability for content. That will transform the way the internet works.