Google and Facebook are under increasing global scrutiny for their role in the dissemination of so-called fake news. Legislators and regulators in both the U.S. and the U.K. are investigating whether Google and Facebook should be considered news media companies or news publishers and therefore be subject to the same regulations and liability as traditional news and media outlets. If classified as publishers, the companies could be subject to libel, slander, copyright infringement, and other legal claims for the content they host and post to their respective sites.
Initially started as a simple search engine and a connect-with-your-friends platform, Google and Facebook, respectively, have grown to be among the largest global, multimedia information service providers in the world. With huge market shares and billions of users around the planet, the two companies control and influence a massive marketplace of ideas and information, not all of which are legitimate and much of which can often be dangerous. Terrorist organizations are known for using Facebook and other social media platforms for communication and recruiting. Google and Facebook (along with Twitter) were also recently hauled before Congress to testify about Russia’s uses of their platforms to influence the 2016 election cycle.
Section 230 and the DMCA
Google, Facebook, and similar platforms have largely been exempt from regulation and legislative scrutiny thanks to two aging laws dating back to the earliest days of the commercial internet. Section 230 of the Communications Decency Act of 1995 (known as Section 230) declared that ISPs are not to be “treated as the publisher or speaker of any information provided by another information content provider.” This as an attempt to protect the early ISPs such as America Online and CompuServe and the early broadband providers from having to be concerned about information posted on their servers or through their services by third parties. The law was intended to promote the internet’s further development by treating the services more like a library (a simple host for information) than a newspaper (the creator of the information).
In 1998, the Digital Millennium Copyright Act (DMCA) expanded protections to ISPs by providing a “safe harbor” from copyright liability for infringing works posted to or on their services. While they are required to take down the infringing works once they are notified (the “notice and takedown” provisions), they are not legally responsible for the postings.
Together, these two laws have allowed the robust development of social media platforms such as Facebook and Twitter and shared media platforms such as Google’s YouTube, because the large hosting companies are essentially free from being legally responsible for information that is posted to their sites by end users, subscribers, and other third parties. To be clear, these third parties can be held liable for their actions, whether they are copyright infringement, defamation, or fraud, but the hosting companies are not liable.
Both of these provisions have been quite controversial. Section 230 was originally intended to apply to providers such as America Online or Comcast, which simply host content. However, they’ve been expanded to cover virtually any website that provides any kind of platform for third parties. Even if the platform is constructed to deliberately seek a particular type of content—such as online forums, dating services, financial advice, or funny cat videos—there is very little risk of liability for illegal or fraudulent content posted by third parties.
Both the U.S. and the U.K. are taking a fresh look at this exemption and the relative lack of legislative and regulatory oversight that governs Google and Facebook. In October 2017, a spokesperson for U.K. prime minister Theresa May told The Guardian, “We are looking at the role that Facebook and Google play in the news environment” as the government decides whether the companies should be considered publishers of the news and regulated like other broadcast news media outlets. While no formal steps have yet been taken, in remarks before members of Parliament, the chair of U.K. communications regulator Ofcom indicated that her organization will be contributing to the debate on possibly classifying Google and Facebook as publishers and is concerned about “the integrity of [the] news. …” Ofcom has a role in regulating the accuracy, bias, and impartiality of broadcast news in the U.K.
In the U.S., constitutional protections of a free press and free speech make regulating Facebook and Google more challenging, but not impossible. The government’s ability to direct the accuracy, bias, and impartiality of private companies is limited by the free speech and free press rights of those companies. However, regulations that are content-neutral are possible. In response to recent assertions that Facebook and Google were accepting political ads from Russia-backed entities, a bipartisan bill was introduced in Congress to address such concerns. The Honest Ads Act (HR 4077) would require social media services, online advertising entities, and other websites to disclose financial support and other information about the parties behind the advertising in much the same way as for current television, radio, and newspaper political advertising.
Congress could consider repealing or amending Section 230 and the safe harbor provisions of the DMCA, both of which would likely increase the threat of legal liability for publishing third-party content. Neither of these proposals is being actively considered, and they would likely encounter significant objection by Facebook, Google, and other large content providers. Already, the U.K.’s consideration of regulating Facebook and Google has drawn objections from U.K. commentators, one of whom describes it as both a “gross intrusion to freedom of speech” as well as being “completely unworkable.”
While legislation and regulation to restrict or reclassify Google and Facebook are under discussion on both sides of the Atlantic, other commentators are recommending that the companies could forestall legal intervention through more self-regulation. Sen. Amy Klobuchar (D-Minn.), one of the co-sponsors of the Honest Ads Act bill, suggested that the companies have been “increasingly cooperative” in pursuing self-regulation. Karen Bradley, the U.K. Secretary of State for Digital, Culture, Media and Sport is supporting British regulation of Google and Facebook, but has also indicated that she believes the companies are willing to do more on their own.