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Why Is Facebook, the World’s Largest Publisher, Immune to Publishing Laws?

Mark Zuckerberg should be called a publisher and held liable for what’s published on Facebook.

A protester with the group Raging Grannies holds a sign during a demonstration outside of Facebook headquarters on April 5, 2018, in Menlo Park, California.

Mark Zuckerberg may not think he needs a new job, but he does. It’s long past time Facebook be classified as a publisher, where it can be held responsible for the content that appears in posts on its system.

The issue here is the special exemption to liability that Facebook and other internet platforms get from Section 230 of the Communications Decency Act of 1996. This law was passed in the early days of the internet and was intended to set up rules for governing communications that paralleled the ones for print and broadcast media. At the time, Congress decided to include Section 230, which protects Facebook and other internet platforms from the same sort of responsibility for content that print or broadcast media face.

To see what is at issue, suppose that a Facebook post becomes widely circulated saying that Donald Trump has stolen $20 million from charity. Imagine in this particular case, it happens not to be true, and Trump can prove this fact.

Because of Section 230, Facebook bears no responsibility for spreading this false accusation. In fact, it is not even obligated to remove the false accusation from its platform, although it would likely choose to do so under the circumstances. If Trump could determine who had initiated the post, he could pursue legal action against them, but Section 230 would protect Facebook from any liability.

By contrast, suppose that a newspaper had printed the same accusation. To make the situation parallel, assume that the accusation appeared in a column by someone not employed by the paper or in a letter to the editor. In other words, like Facebook, the newspaper itself was not the source of the accusation.

In this case, if Trump presented the paper with the evidence that the accusation was not true, they would be obligated to print a prominent correction and remove the libelous material from their website. Failure to do so would leave them vulnerable to a libel suit. (The fact that Trump never does sue for libel speaks to the credibility of his endless accusations of “FAKE NEWS!”)

There is no good reason that Facebook should not be subject to a similar standard for posts that occur on its system. The basic rule would be that if the company is presented with evidence that a post is false and damaging, then it must remove the post from its system.

It also would be required to post a prominent correction so that many of the people who saw the libelous post would also see the correction. This would mean that individuals, businesses and organizations would be required to post a correction on their Facebook pages.

Facebook could ensure that they do this posting by simply adding a clause in those famous “terms of service” contracts that no one ever reads. That way, if someone objects that Facebook is requiring them to post a correction on their page, the company can explain that they agreed to such posting when they signed up in the first place.

There clearly is no free speech issue here. This would be transferring long-established rules on libel to the internet. If these rules don’t pose a problem for newspapers and broadcast media, then it’s hard to see why they would pose a problem on the web.

Facebook would of course object to this change in the law. It would require the company to devote a far greater amount of resources to following up on complaints about libelous materials and taking corrective measures when the claims are determined to be inaccurate. This would take a huge bite out of Facebook’s profits. It could even put the company out of business altogether.

However, even if being held responsible for the damage caused by its posts does sink Facebook, it will not be the end of the internet as a means of communication. People will still have websites and email. Also, a platform that did not profit from its advertising, but simply acts as a common carrier (like a telephone company or an offset printer) would not have to worry about the risk of carrying libelous material.

The problem we have is, in effect, the world’s largest publisher is acting with immunity from the laws that other publishers are required to obey. It’s time for Mark Zuckerberg to join the publishing world. We’ll see how well he does.

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