Well, we can add Mark Zuckerberg to the list of folks willing to toss Section 230 liability protections out the window -- contrary to the claims of many that Facebook is the leading supporter of that law. He's now making it clear that he's open to a big modification of the law.
Over and over and over again over the past few years, politicians (and some media folks) have kept insisting that Section 230 "was a gift" to big internet companies like Facebook. Indeed, practically every discussion of regulating "big tech" seems to revolve around eliminating parts or all of Section 230. But, as we've explained many times over, Section 230 is actually just about the proper application of liability to the party that actually violates the law -- rather than the tools they use. And this is important, especially for smaller companies, because a big giant like a Facebook or a Google can deal with much greater legal liability. They can afford all the lawyers it takes to fight court battles. Smaller companies? Not so much.
Indeed, in a study we put out last year, we showed that Section 230 actually increases competition and leads to more investment, since it makes sure that smaller internet platforms can actually get off the ground and not be stifled.
And the reality is that Facebook, in particular, has already recognized that it can survive without Section 230 and that taking away 230 helps it against competitors. You just need to look back two years ago, when Facebook -- specifically Mark Zuckerberg and Sheryl Sandberg -- agreed to buck the rest of the industry and support FOSTA to recognize that the company has made a calculated bet that it can better withstand such lawsuits than competitors. And given the company's penchant for trying to either acquire or stomp out competitors, hurting those smaller players is now a strategic choice.
And thus, it should come as little surprise that Zuckerberg is now directly telling people that the Section 230 needs to change. Over the weekend at a conference in Munich, he said (somewhat misleadingly) that there are two models of liability: one with a newspaper, in which the paper is liable for everything in publishes, and one for a telco, in which everyone recognizes it's crazy to hold a phone company liable for harmful content said on a phone line:
"There's a question about framework you use for this, and right now there are two frameworks that people have for existing industries. There's like newspapers and existing media, which is the analogy that you drew. And then there's the kind of telco type model which is, okay, the data just flows through you, but you're not gonna hold the telco responsible if someone says something harmful on a phone line.
Of course, Section 230 is that telco model. But, then he suggests that Facebook shouldn't have that kind of protection (though he doesn't want to go as far as the newspaper model):
I actually think where we should be is somewhere in between.
What does that mean? Who the hell knows, which is why it's not every useful guidance for regulators. But, at the very least, he's making it clear that he doesn't think Facebook needs Section 230 and is willing to be held to a different standard. Again, this isn't surprising, given the company's past support for FOSTA (which forced a bunch of dating sites to shut down... just in time for Facebook to open its own dating service).
And then, as if to reinforce this was not just some off-the-cuff remarks by its CEO, Facebook had its VP of content policy, Monika Bickert, who certainly knows the importance and value of Section 230, put out a blog post, more or less explaining how Facebook would like 230 to be removed. Of course, that's not the way it's officially stated. Instead, the post is about "a way forward on online content regulation," which is what Facebook is calling the new white paper it's releasing, but what's suggested is a path to destroying 230.
The paper is set up -- cleverly -- as if it's just "asking questions" about content regulation. However, some of Facebook's answers are the kinds of answers that Facebook is in a position to handle, while others are not. Take this, for example:
Governments could also approach accountability by requiring that companies meet specific targets regarding their content moderation systems. Such an approach would hold companies accountable for the ends they have achieved rather than ensuring the validity of how they got there.
For example, regulators could say that internet platforms must publish annual data on the “prevalence” of content that violates their policies, and that companies must make reasonable efforts to ensure that the prevalence of violating content remains below some standard threshold. If prevalence rises above this threshold, then the company might be subject to greater oversight, specific improvement plans, or—in the case of repeated systematic failures—fines.
Facebook could handle that. Techdirt could not. Nor could lots of other smaller companies.
Hopefully statements and papers like these should put to rest the idea that Section 230 is some sort of special gift to Facebook in particular. Facebook doesn't need it. The rest of us do.
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