In 2019, Facebook cemented its position as a political player. By then, Facebook has ceased to be a mere social media platform and instead it has become an editorial activist platform. In may respects, Facebook is now a “publisher” and as such it can be sued, at least in the UK, for defamation. In 2019, intentionally or not, Facebook admitted, for the first time, during a court hearing, that it was in fact a publisher rather than simply a platform for sharing pictures of new born babies and funny cats. What is the truth? Is Facebook a publisher or a mere graffiti wall, and why does it matter?
When does a social media platform become a “publisher”?
So when does a social media platform turn into a “publisher”? Usually, the answer would depend on the degree of editorial control it exercises over content. The wider the scope of its editorial decisions, the more likely it is that the social media platform is in fact a “publisher”.
During 2019, Facebook had made a significant number of editorial decisions, particularly to ban or suspend political activists from its platform. In 2020, Facebook should safely be considered legally responsible for posts published on its platform as it will no longer be able to claim it does not exercise editorial control over content. This places Facebook in a very similar position to that of a newspaper.
Facebook has historically called itself a platform, but in court, it has argued that it is a publisher:
Publicly: Facebook has said it is a tech platform, not a publisher or media company.
In court: Facebook has argued that it is a publisher, and that its decisions about what to publish and not to publish are protected by the First Amendment.
When did Facebook admit that it was a publisher?
On 2 May 2019, Facebook removed the user account of a lady called Laura Loomer. It removed Ms Loomer’s accounts from its platform as part of what it said was its effort to ban individuals and organisations that “amplify or traffic in hate”.
Ms Loomer, who described herself as a “well-known conservative investigative journalist” and “conservative Jewish female activist” brought her legal action against Facebook, asking the court to order Facebook to restore her Facebook accounts.
She claimed that when Facebook published an explanation of its decision to ban her, it defamed her because it branded her as a dangerous individual under its Dangerous individuals and organisations policy.
In defending the case, ( LAURA LOOMER, Plaintiff, v. FACEBOOK, INC.), Facebook claimed that it was a publisher and that as such, it was protected from the claim of defamation by the First Amendment of the US constitution that provides for an unlimited right of free speech.
How can this be reconciled with Facebook denying that it was a publisher?
It cannot. In 2018, Mark Zuckerberg, Facebook’s founder, in his evidence before Congress insisted that Facebook was a neutral platform and certainly not a publisher.
Facebook has traditionally had to rely on Section 230 of the Communications Decency Act, a US legislation that says that platforms cannot be liable for content users post on their sites and that they should not be “treated as the publisher” of information from others.
For this reason, its assertion in court that it was a publisher, is somewhat bizarre. On one hand, it claims that it is a publisher, making editorial decisions but then, when it is convenient, it turns around and claim it is protected under Section 230 because it is not a publisher.