In US court Facebook Argues that it is a Publisher that makes editorial decisions which are protected by the first amendment
Is Facebook a publisher? In public it says no, but in
court it says yes
In its defense against a former app startup, Facebook is
contradicting its long-held claim to be simply a neutral platform
A lawsuit is claiming Mark Zuckerberg developed a
‘fraudulent scheme’ to exploit users’ personal data.
By Sam Levin in Redwood City Tue 3 Jul 2018 02.00 EDT
Last modified on Tue 3 Jul 2018 09.50 EDT
Facebook has long had the same public response when
questioned about its disruption of the news industry: it is a tech platform,
not a publisher or a media company.
But in a small courtroom in California’s Redwood City on
Monday, attorneys for the social media company presented a different message
from the one executives have made to Congress, in interviews and in speeches:
Facebook, they repeatedly argued, is a publisher, and a company that makes
editorial decisions, which are protected by the first amendment.
The contradictory claim is Facebook’s latest tactic
against a high-profile lawsuit, exposing a growing tension for the Silicon
Valley corporation, which has long presented itself as neutral platform that
does not have traditional journalistic responsibilities.
The suit, filed by an app startup, alleges that Mark
Zuckerberg developed a “malicious and fraudulent scheme” to exploit users’
personal data and force rival companies out of business. Facebook, meanwhile,
is arguing that its decisions about “what not to publish” should be protected
because it is a “publisher”.
In court, Sonal Mehta, a lawyer for Facebook, even drew
comparison with traditional media: “The publisher discretion is a free speech
right irrespective of what technological means is used. A newspaper has a
publisher function whether they are doing it on their website, in a printed
copy or through the news alerts.”
The plaintiff, a former startup called Six4Three, first
filed the suit in 2015 after Facebook removed app developers’ access to friends’
data. The company had built a controversial and ultimately failed app called
Pikinis, which allowed people to filter photos to find ones with people in
bikinis and other swimwear.
Six4Three attorneys have alleged that Facebook enticed
developers to create apps for its platform by implying creators would have
long-term access to the site’s huge amounts of valuable personal data and then
later cut off access, effectively defrauding them. The case delves into some of
the privacy concerns sparked by the Cambridge Analytica scandal.
Facebook has rejected all claims. Mehta argued in court
Monday that Facebook’s decisions about data access were a “quintessential
publisher function” and constituted “protected” activity, adding that this
“includes both the decision of what to publish and the decision of what not to
publish”.
David Godkin, an attorney for Six4Three, later responded:
“For years, Facebook has been saying publicly that it’s not a media company.
This is a complete 180.”
Questions about Facebook’s moral and legal
responsibilities as a publisher have escalated surrounding its role in
spreading false news and propaganda, along with questionable censorship
decisions.
Eric Goldman, a Santa Clara University law professor,
said it was frustrating to see Facebook publicly deny that it was a publisher
in some contexts but then claim it as a defense in court.
“It’s politically expedient to deflect responsibility for
making editorial judgements by claiming to be a platform,” he said, adding,
“But it makes editorial decisions all the time, and it’s making them more
frequently.”
Facebook may be resistant to embrace its role as a
publisher due to stricter laws and regulations outside of the US that could
cause the company trouble, Goldman said.
Still, he argued, Facebook should have the right to make
these kinds of decisions about data access and predicted that the company would
prevail in court: “Facebook should have the power to stop apps like Pikinis …
Facebook was far too loose with its data, and now it’s having to clean it up.”
In the Six4Three case, Facebook has also cited Section
230 of the Communications Decency Act, US legislation that paved the way for
the modern internet by asserting that platforms cannot be liable for content
users post on their sites. In court filings, Facebook quoted the law saying
providers of a “computer service” should not be “treated as the publisher” of
information from others.
“It just strikes me as fundamentally problematic,” said
Jane Kirtley, a professor of media ethics and law at the University of
Minnesota. “On one hand, you’re trying to argue you’re this publisher making
editorial judgments. But then they turn around and claim they are protected
under [Section 230] because they are not publishers.”
Natalie Naugle, Facebook’s associate general counsel for
litigation, defended the company’s legal strategy in a statement to the
Guardian, saying: “Facebook explained in today’s hearing that we decide what
content to make available through our platform, a right protected by Section
230. Like many other technology companies, we rely on the discretion protected
by this law to police bad behavior on our service.”
Facebook spokespeople declined to answer questions about
its insistence outside of court that it is not a publisher or media entity.
Daphne Keller, of the Stanford Center for Internet and
Society, said Section 230 was designed to allow platforms like Facebook to do
some moderation and make editorial decisions without generally being liable for
users’ posts: “They need to be able to make discretionary choices about
content.”
The law seemed to be on Facebook’s side, she said, but
added that it was an unusual case given the focus on app data access while
previous cases have centered on more straightforward censorship claims.
Rebecca Tushnet, a Harvard law school professor, said it
seemed Facebook was “owning up to the reality that we all see, that it has an
important place in the media environment”.
Kathleen Culver, a University of Wisconsin-Madison
journalism professor, said Facebook must consider its ethical obligations
outside of its legal responsibilities.
But, she added, it was difficult to define Facebook’s
media role using traditional terms like publisher: “What we’re navigating is a
space where the language we have to date does not match the technology that has
now been developed.”
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