Carrier indemnity must stay

A white woman standing in a crowd next to a man in khaki clothes holding an American flag and a sign saying "Trump Stolen 2020".

BBC Click — What’s Next for Big Tech? (Available until January 2022)

In the most recent episode of the BBC tech series Click, it was revealed that the new US president Joe Biden is seeking to repeal the law that indemnifies “big tech” from what people who use their services say. In the UK, where libel laws passed in the 19th century aimed at protecting the reputations of ‘gentlemen’, i.e. the rich and powerful, favour the litigant, web hosts are responsible for the content hosted on their servers and can be sued if someone takes offence. In practice, most will back down at the receipt of a lawyer’s letter and shut the site down until the matter is removed, or permanently. The same cannot happen in the USA; only the person who writes the material or takes an active decision to publish it is responsible — a web host is likened to a telephone service rather than a newspaper. Last year, according to the programme, Biden told the New York Times that they could not publish a known falsehood and expect not to be sued, but Mark Zuckerberg, the owner of Facebook, could, and that this law, known as Section 230, should be “revoked immediately”.

Both Biden and the BBC seem to be making the mistake that this is all about “big tech”. In fact, although social media is mostly in the hands of a handful of large companies, S230 benefits all web hosting services and their users. This blog is hosted in the USA; a few years ago, someone from my old school demanded I remove an entire entry, claiming it was libellous to him; he refused to identify himself or the relevant section. When I refused, he approached my web host and demanded they delete it. They also refused, because they are not responsible for what I said as a result of section 230 and told him the entry was covered by the American First Amendment. He then disappeared and I never heard from him again. If I had remained with my original British host, it would only have taken a letter from his solicitor to have my entire blog removed until I agreed to remove the entry, which exposed the culture of abuse and violence at the special school I attended in the early 1990s. Anyone can use this mechanism to silence a blogger whose material is hosted in the UK, whether the material is about child abuse, medical malpractice, corporate or political corruption or anything else.

The comparison between ‘Zuckerberg’ and the NYT is an entirely false one. The New York Times is a newspaper and what appears in it is the result of an editorial decision. Facebook’s content is written by its users and Mark Zuckerberg has nothing to do with it when it first appears. As it happens, Facebook does have means of screening out content which is inappropriate or harmful, as do most social media platforms, but if it was responsible for everything people said, for ensuring no libellous material appeared, then it could not function as a social media service. It has been widely noted that in some countries Facebook has become a cesspit of rumour, accusation and fake news and this has been a source of communal violence (e.g. in Burma, Sri Lanka and elsewhere in Asia) and if they persist in allowing this sort of use of their services, they should be held accountable, but a distinction must be made between harmful misinformation or incitement to violence and what causes mere offence where the responsibility should lie with the author, not the hosting company.

Calling the companies affected “big tech” implies that this just about a small number of multi-billion-dollar technology giants. It’s not just about them nor is it just about violent sedition or misinformation about vital matters of health such as vaccines and Covid. It’s about everyone’s ability to speak out about things that affect their lives. Of course, even with section 230 an author can still be sued and still is responsible if they defame someone, but they cannot be silenced by mere threats of legal action which could be idle and baseless just because the web host is also liable and has no interest in fighting the case. Section 230 facilitates free speech, both in the USA and abroad. It will have a chilling effect on all of us if it is repealed.

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