Re Section 230: A Key Legal Shield For Facebook, Google Is About To Change

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: "Savage, Christopher" <ChrisSavage () dwt com>
> Date: March 30, 2018 at 4:09:32 AM GMT+9
> To: "dave () farber net" <dave () farber net>
> Subject: RE: [IP] Re Section 230: A Key Legal Shield For Facebook, Google Is About To Change
>
> From: Dave Farber [mailto:dave () farber net] 
> Sent: Wednesday, March 28, 2018 2:34 PM
> To: ip
> Subject: [IP] Re Section 230: A Key Legal Shield For Facebook, Google Is About To Change
>  
> Dave, for IP if you wish…
>  
> ---------- Forwarded message ---------
> From: John Gilmore <gnu () toad com>
>
> > > > 1/            The useful public purpose of Section 230 immunity is for
> online services to be safe permitting unrestricted user comments.
> > > > 2/            That public purpose is not particularly well-served by pe=
> rmitting online services to monetize those comments (other than by making t=
> hem available),
> > > > 3/            That public purpose is also not well-served by permitting=
>  online services to escape liability for content they actively promote to u=
> sers, even if the online services did not create that content.
> > > > 4/            Similarly, it is not well-served by permitting online ser=
> vices to escape liability for the content of advertisements or other conten=
> t for which the online service is paid.
>
> > > It is firmly established in First Amendment law that making money from your publishing is no excuse for censorship. 
> > > The criteria you proposed don't pass the laugh test; almost nobody would want to live
> in the society that it would produce.  Every newspaper, magazine, TV station and every bookseller makes money from 
> what it publishes, and some of that is written or recorded by outsiders.  And, each of them
> promote what they publish, and many of them publish ads.  And each of them has a RIGHT to publish these things, 
> without being sued out of existence by people who disagree with what they published.<<
>  
> John,
>  
> You are, to some extent, making my point. Every newspaper, magazine, TV station, etc., has a right to publish what 
> they choose.  Agreed.  But at the same time, they are subject to damages claims (which can be substantial) if what 
> they choose to publish is (for example) defamatory under established legal standards.  And traditional media, knowing 
> that they are subject to such claims, invest time and effort (usually successful) to ensure that what they publish is 
> not defamatory.  Indeed, much more than that – without question, major media outlets set a much, much higher standard 
> for themselves, seeking to publish stories that reflect what they understand the truth to be. 
>  
> Now, the law is well-established that defamation suits cannot succeed on the grounds that someone disagrees with or 
> doesn’t like what the publisher says.  When the subject of an article or ad is a public figure, the standard (as you 
> know, I’m sure), is either “knowing falsity” or “reckless disregard” as to whether the publication is true or false.
>  
> My point is that Section 230 relieved online service providers of damages liability for stuff that they allow to be 
> put up on their sites by third parties, with no consideration at all of whether that material is knowingly or 
> recklessly (or otherwise) false.  As I said earlier, that was very likely the right call in 1996, particularly 
> applied to user-generated comments.  Pre-publication review in the traditional sense for such comments doesn’t scale. 
>  But the question now is whether in light of how the online ecosystem has evolved, that same rule, unamended and 
> unchanged, makes sense going forward, or whether it would be fair and workable to impose potential liability on 
> online service providers for some third-party content that they allow to be put up on their sites.
>  
> Your view may be that all of libel law is an unacceptable infringement on First Amendment rights, because its 
> existence undoubtedly causes publishers to think about what they publish and to not run some things that they’d 
> “like” to publish due to fears of liability.  If so, I get that view, but it is not in accord with longstanding law.
>  
> My points above were intended to encourage discussion.  Thanks to you (and Dave!) for responding. 
>  
> Chris S.
>
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