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Facebook, the First Amendment and Section 230

Facebook, the First Amendment and Section 230
May 9, 2019
Facebook, the First Amendment and Section 230

Unfortunately, pub numbers, like church attendance, seem to be locked in a downward spiral. Business rates rising above the rate of inflation and several years of the alcohol duty accelerator haven’t helped the decline, but the reluctance of a growing proportion of young people to spend time at the boozer represents a cultural shift that’s probably beyond the influence of the Chancellor of the Exchequer.

Public forums such as the pub are giving way to the digital sphere. A 2018 report published by Ofcom – A decade of digital dependency – paints a truly disturbing picture. People in the UK feel the need to check their smartphones, on average, every 12 minutes of the waking day. One in five adults say they spend more than 40 hours a week online, yet the amount of time spent making phone calls has fallen, as people decamp to internet-based services such as WhatsApp and Facebook Messenger. Think about that the next time some oaf bumps into you on the high street while they’re staring blankly at the latest iPhone XS.

Of course, this collective obsession has presented an unprecedented commercial opportunity – and tech-savvy investors have profited handsomely. Yet it might be time for investors to look twice at their tech allocations. This follows comments by Mark Zuckerberg at the latest Facebook F8 conference, which suggest that the leviathans of Silicon Valley have become fearful that their business models are not only attracting increased scrutiny from regulators over the way they exploit end users, but also from an anti-trust perspective.

The Facebook (US:FB) supremo’s assertion that “the future is private” has been widely reported as signalling a pivot point for the social media pioneer, as it adopts “privacy-focused” features across its product suite, including the introduction of default end-to-end encryption on its Messenger service.

But this brave new world is totally at odds with statements that Zuckerberg has made in the past in which he, quite justifiably, highlighted the willingness of the digital community to share personal data. It’s been great for business: more public sharing translates into more targeted advertising revenues. But that was before Cambridge Analytica and a host of other data collection scandals that have bedevilled the social network for the past 18 months or so.

In its Q1 update, Facebook confirmed that it expects to pay between $3bn and $5bn to the US Federal Trade Commission (FTC) as the result of an investigation into its privacy policies. That followed on from calls by the chairman of the House Subcommittee on Antitrust, Commercial and Administrative Law for the FTC to assess Facebook’s activities for potential antitrust violations.

Worse could follow. Conservative and libertarian legislators in the US have renewed the debate on what constitutes protected speech on digital platforms following Facebook’s decision to ban a handful of what it deemed extremist figures last week, most notably conspiracy theorist Alex Jones and Nation of Islam leader Louis Farrakhan.

Digital platforms in the US are protected under Section 230 of the Communications Decency Act of 1996, which essentially provides immunity from liability for the likes of Facebook who publish information provided by others. But some argue that the increased moderation (or censorship) we’re seeing on social media sites, together with the blanket bans, means that companies like Facebook are acting more like publishers, which exercise editorial control over content – and, therefore, should be liable for litigation in relation to their online content.