Publishers are at a disadvantage against social media companies. Could President Trump’s recently waged war on social media present a unique opportunity?

By William Dunkerley

"The Times They Are A-Changin'" is the title of a 1960s Bob Dylan song. It seems to capture the powerful mood for change of that era.

Today, mood or no mood, we are facing powerful changes in the magazine publishing business. Some reflect the unfortunate realities imposed upon us by the Covid-19 crisis.

Adapting Content to the Present Moment

For many publishers advertising revenues have greatly diminished or even disappeared. For others, the very subjects they publish about have disappeared or gone into remission.

Think of the sports magazines that cover sports that cannot be played. Or fashion magazines. Take Vogue, for example. How can its writers write about fashion when clothes are not being manufactured or marketed or purchased? It's true that people are buying clothes online, but sales are being fulfilled from existing inventories.

Actually, Vogue came up with an innovative response. It published a special issue, "Our Common Thread: Creativity in a Time of Crisis." The editor explains, "We have created a document of this moment for the years to come: a poignant reminder of how we were all acutely missing the miracles of everyday life and the joy that they can bring."

Trump’s War on Social Media

Now, on a very different subject, we face a change ahead that may be positive for us. It involves the unlikely matter of a feud President Trump is waging against social media giants. Trump became aggrieved when Twitter publicly questioned the factualness of a couple of his tweets. In response, the president wants to remove a privileged status the social media platforms have operated under.

That's created a big political tiff. The Trump side claims the platforms have been playing an editorial role they're not entitled to. The other side asserts that the president just wants to censor social media to his favor.

How could any of that possibly benefit magazine publishers? It is no secret that we are in competition with social media. We're both sources of content for readers. If consumers continue to get more and more of their content online for free, it will work to the disadvantage of magazines. We lose subscription income and we lose audience size, which in turn diminishes our attractiveness to advertisers.

The Publisher’s Burden -- and Missed Opportunity?

As publishers we shoulder a burden that our social media competitors can virtually ignore. We've got to stand behind our content; they don't. Certainly this is one thing that distinguishes us. Our brand reputation tells readers that they can rely upon what we publish. The social media sites, however, are full of fly-by-night content that the site owners rarely scrutinize. Unfortunately, I must say that many publishers have not capitalized on that advantage. But still it's there.

An extension of that burden arises in the area of libel and liability. We can be successfully sued if our content is actionable. The social media sites enjoy protection from that.

A classic almost 30-year-old case involving Soldier of Fortune magazine illustrates this. According to the January 12, 1993, Los Angeles Times, "in a setback for the publishing industry, the Supreme Court Monday let stand a $4.3-million damage verdict against a magazine for printing a classified ad that led to the contract slaying of an Atlanta businessman. "

That same Times article explained, "A US appeals court ruled last year that Soldier of Fortune magazine can be held liable because its ad posed an 'unreasonable risk of ... substantial harm to the public,' a ruling the justices left intact." The ad in question had read, "Gun for Hire."

The Laws Shielding Social Media from Content Liability

Social media companies have been hiding behind a provision in the 1996 Communications Decency Act. It reads:

"Civil Liability -- No provider or user of an interactive computer service shall be held liable on account of -- (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)."

The aforementioned paragraph (1) says:

"(1) Treatment of Publisher or Speaker -- 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."

All this language seems pretty confused to me. It's what you might expect legislators in the mid-1990s to have written about the then-little-understood internet and its social media. Neither Facebook nor Twitter even existed then. Facebook launched in 2004, Twitter in 2006.

Now the underlying question is whether a social media platform is a publisher or simply a common carrier of information for which someone else is responsible. That's a critical question.

Telephone companies function as common carriers. If two parties cook up a crooked deal over the phone, no one can sue the phone company over that. The telephone companies don't vet the content of our communications.

Publishers do vet and edit the content they produce and must face the consequences if they allow illegalities or libelous statements into publication. It's a costly process that requires great skill.

And that's the competitive disadvantage we're given.

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

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