Current regulations treat social media as “common carriers” rather than “information content providers.” Has the time come to rethink this classification, or perhaps even create a new one?

By William Dunkerley

Official reactions to a recent New York Post-Twitter-Facebook scandal could lead to actions detrimental to publication editors. This article will suggest a way out for us.

The incident in question was triggered by a recent New York Post exposé. The piece presented allegations that reflected poorly on the Biden family. In response, Twitter and Facebook both took steps to block or impede the propagation of the story across their networks.

The social media giants generally asserted that the Post presented alleged evidence that had not been verified.

Sharp reactions followed by those who favored besmirching the Bidens for partisan reasons. They claimed the "verified evidence" principle was not being applied with political neutrality and reflected a bias.

We won't deal with those political arguments here. But there is another aspect of this that seems ominous for publication editors. It comes down to a disparity that exists between social media networks and publications.

Social Media Immunity: An Unfair Advantage?

The difference is this: We can face consequences for what we publish. Social media networks are afforded a degree of immunity that we don't have.

That gives social media a competitive advantage and places on us the burden and expense of greater vigilance over what we publish. Make no mistake: We are in competition with social media and the internet at large as suppliers of content to audiences. Social media's advantage is our disadvantage.

The exact legal issues involved are complex and beyond the scope of this article. I'll deal with the relevant concepts in generalities from a media professional's point of view.

Social media networks derive their benefit of immunity from a provision in the FCC rules. It largely short-circuits actions against them pertaining to content posted by network users.

The Onus of Content Sources vs. Common Carriers

To put this into perspective, envision the difference between content sent over telephone landlines and that delivered by a publication.

If two criminals, for instance, plan a crime over the phone, go on to carry it out, and are subsequently caught, the telephone company isn't going to share in the blame. But if the crooks had exchanged posts in the comments section of an article you published, it could be a different story.

A classic example is provided by the Soldier of Fortune case from the 1980s. Someone placed a classified ad that read, "Gun For Hire: 37-year-old professional mercenary desires jobs. Vietnam veteran. Discrete and very private. Bodyguard, courier, and other special skills. All jobs considered."

A reader subsequently hired the advertiser to kill a business associate. The reader and the advertiser were eventually convicted. Ultimately the publisher was found to have some culpability, too, and a large civil penalty was levied. In the end, the Supreme Court of the United States upheld that judgment.

The fundamental difference between a telephone company and a publishing company is this: While the telco has no onus to monitor and control what's distributed over its network, a publisher indeed exercises control over what it publishes. The telephone company is considered to be just a "common carrier" but the publisher is not -- it's a content source. When social media came along, there erupted a quandary over which category it belongs in. Naturally, the social media companies preferred the former.

A Raw Deal for Publishers

Sanctuary for the social media companies came in the form of an FCC regulation that says, "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."

Publishers, on the other hand, are considered "information content providers." That means we are "responsible in whole or in part for the creation or development of information provided through the internet or any other interactive computer service."

That's a bad deal for publishers, in my view. Social media networks were shoehorned inappropriately into the preexisting common carrier category (even though they exert influence over available content). They are like neither telephone companies nor publishers. In reality, they represent a new category. Out of fairness to publishers, their misclassification is a wrong that needs to be righted.

Rethinking Social Media’s Legal Classification

But what should this new category be? Are there any existing analogues that could help define it?

Indeed there is one. It came to prominence in a California case where students sought signatures in a shopping mall for a petition. The mall managers disallowed the activities. The students sought redress. A US Supreme Court ruling ensued. The general gist is that a shopping center's common space had taken on the characteristics of a public square and that individuals exercising their free speech rights there "did not violate the owner's property rights."

Doesn't a parallel exist there? Haven't social media outlets, especially the large monopolies, come to resemble a digital public square wherein participants should be accorded free expression?

As with the historical public square, there can be behavioral restrictions to protect the rights of others and assure lawfulness. But the content of the discourse, if legal in nature, should not be subjected to editorial decisions made by mall or network management.

That's my solution. Social media networks deserve their own category in information space, and it should resemble a public square. If instead they want to exercise editorial influence, let them be classified as publishers -- with all the attendant responsibilities.

Are Unfavorable Changes for Us Possible?

Now, you might think that the possibility of new restrictions for us coming from the New York Post-Twitter-Facebook scandal is remote.

But it has already begun. On October 15 Reuters reported, "Federal Communications Commission chairman Ajit Pai said Thursday the agency will move forward to set new rules to clarify the meaning of a key legal protection for social media companies."

Because there are strong political connotations to each side of this issue, it is hard to anticipate what direction that or other actions might take.

Obviously this is not an issue for individual editors to tackle alone. But I recommend two steps you can take to help protect the prerogatives and competitive position of your publication and others.

First, urge vigilance from any relevant professional organizations you may belong to. Be sure they will act to protect your rights and interests.

Second, make clear to members of your congressional delegation that you wish them to exercise caution in this area, lest publications within their constituency be treated unfairly by whatever new rules may arise.

William Dunkerley is principal of William Dunkerley Publishing Consultants, www.publishinghelp.com.

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