Last month George Soros had a New York Times column arguing that Mark Zuckerberg should not be running Facebook. (Does the NYT reserve space on its opinion page for billionaires?) The gist of Soros’ piece is that Zuckerberg has made a deal with Trump. He will allow all manner of outrageous lies to be spread on Facebook to benefit Trump’s re-election campaign. In exchange, Trump will defend Zuckerberg from efforts to regulate Facebook.
Soros is of course right. Zuckerberg has said that Facebook will not attempt to verify the accuracy of the political ads that it runs. This is a greenlight for any sleazebag to push the most outrageous claims that they want in order to further the election of their favored candidate.
This will almost certainly benefit Donald Trump’s re-election, since the one area where he can legitimately take credit is in pushing outlandish lies. No one has pushed more lies more effectively than Donald Trump. The free rein promised by Zuckerberg is a re-election campaign contribution of enormous value.
While Soros is right on the substance of the issue, he is wrong to focus on the personality of Mark Zuckerberg. It would be good if we had a responsible forward-thinking person, who cared about the future of democracy running Facebook, but that is not the normal course of things in a capitalist economy.
Businesses are run to make money. And, the bottom line here is that Facebook stands to make much more money spreading outlandish lies that help Trump’s campaign, than screening ads for their veracity. In this context, we should not be surprised that Facebook is taking the lie-spreading route. The problem is not that Zuckerberg is acting like a normal businessperson, the problem is that we made the lie-spreading route profitable.
In this respect it is worth pointing out that we don’t have the same problem with other media outlets. We don’t have to beg CNN, the New York Times, and other major news outlets to not take ads that they know to be false. They won’t do it, perhaps in part out of principle, but also because they could be sued for libel if they spread claims that were false and damaging.
For example, if I wanted to take out an ad asserting that Donald Trump is a rapist (which is likely true), most major news outlets would refuse to run it. Donald Trump could not only sue me for libel, he could also sue any news outlet that carried the ad. If I could not show that the claim was true, the news outlet that published the ad could be forced to pay substantial damages. For this reason, traditional news outlets do try to screen political ads for accuracy, and will not run an ad that they know to be false.
Facebook does not feel the same need to protect against libel because a law passed by Congress exempts it from the same sort of liability faced by traditional media outlets. Section 230 of the 1996 Communications Decency Act, protects Internet intermediaries from the liability rules that apply to traditional media outlets.
The logic that was used to justify this provision is that Internet intermediaries should be treated the same way as common carriers, like a phone company or the mail service. A common carrier does not have control over the content it carries, not does it profit from specific content, except insofar as it increases demand for its service.
This was arguably an accurate description of Internet intermediaries in the early years of the web. For example, we would not have expected AOL to be responsible for whatever people chose to post in its chatrooms. But the web in general, and Facebook in particular, have evolved hugely in the years since Section 230 was put into law.
Facebook has complete control over content. It allows people to pay to have their posts sent to as many people as they choose. It allows them to target the recipients, based on location, age, education, gender, and any number of other characteristics. It is very hard to see how an outlet like CNN or the NYT can be held responsible for spreading libelous material, but Facebook should be exempt.
Whether or not Section 230 made sense in 1996, it clearly does not in era of Facebook. In effect it gives Facebook, and other Internet outlets, a special privilege that is not available to their broadcast or print competitors.
Of course, Zuckerberg will claim that it is not possible for Facebook to monitor the hundreds of millions of items that get posted every day. But the standard need not be that Facebook prevents libelous material from being posted. Rather, Facebook can be required to remove libelous material after it has been called to its attention. Furthermore, since Facebook’s system allows it to know exactly who has opened a post, it can be required to send a correction to anyone who originally received the libelous material.
Zuckerberg has also argued that they cannot be responsible for preventing false material from being spread through Facebook because they shouldn’t be in the position of determining what is true. Determining truth may seem hard for Zuckerberg, but this is precisely what every traditional media outlet does all the time, both when deciding on editorial content and when making decisions about accepting ads. If Zuckerberg’s team is that much less competent than those at traditional media outlets they can look to hire competent people away from these other outlets.
There really is nothing terribly complicated about Facebook’s situation, nor any grand questions of freedom of speech and freedom of the press that don’t come up all the time with traditional media. The basic story is that Facebook is now gaming a provision of a quarter-century old law to pretend it is a common carrier when that is clearly not the case.
If Facebook wants to be treated like a common carrier, then it should become one. That would mean not profiting from ads and boosted posts. It would also mean not selling personal information from its users. If it wants to be a common carrier then it can simply allow people to post as they please and not try to profit from content or personal information.
However, this is obviously not Facebook in its current form. Facebook is no more a common carrier than any major media outlet. As such it has to be subject to the same rules as other media outlets. That will require much more spending to police its network for false and libelous information, which will mean that Facebook will be much less profitable and Mark Zuckerberg will be much less rich.
But that is Mr. Zuckerberg’s problem. We should not be in the position of begging Zuckerberg to do the right thing as the CEO of Facebook or hoping that a more socially responsible person takes over the company. The law must be adjusted to take away Facebook’s special status. It is a media outlet and it is long past time that it be treated like one.
