Here’s a thought experiment: What would happen if every few weeks an anchor on Bloomberg TV or Cheddar pulled out a gun and shot and killed someone live on air? Those companies would shut down the program as fast as you can say “over-the-top television service.” And if such acts of violence happened that often on your local TV news broadcast, that station would probably be taken off the air and face hefty fines.
Such questions inevitably arise every time a horrific act of violence is streamed on Facebook Live or uploaded and shared in a post shared on the platform. In just the last week and a half, the social network made headlines when a disturbed man in Thailand streamed on Facebook Live the murder of his young daughter in front of his wife, and when Steve Stephens filmed his murder of an elderly man in Cleveland and uploaded the video to Facebook. In both cases, it took time to remove the horrific videos—only after 24 hours for the Cleveland video and after a Thai government official and the BBC alerted Facebook for the infanticide video. And those are just the offending videos that we know about. Who knows what other content is being uploaded as we speak?
Facebook admits this is a problem, and says it’s doing everything it can via artificial intelligence and human moderators to filter out such content. Yet it keeps happening, and with 1.8 billion monthly users and a strong focus on video, it’s bound to become a perennial problem for the company.
That’s because Facebook–and other social media giants like Twitter and YouTube–treat their content somewhat duplicitously. On the one hand, these juggernauts rake in billions of ad dollars against the content people upload. At the same time, Facebook doesn’t consider itself responsible for this material and argues that it’s just a platform for the distribution of content by its users. (This is why the Thai government, in a recent example, is unable to sue Facebook.) Were Facebook legally deemed a publisher and not a platform, it would have to dramatically rethink how it approaches uploaded content.
But given that Facebook makes advertising revenue off of all the content published on it, why shouldn’t we begin treating Facebook more like a publisher? Or, if you want to get even crazier, why not look at Facebook videos as something akin to broadcast TV, thus under the regulation of the FCC? This government agency has guidelines about what can and cannot be broadcast—and it’s clear that murders and acts of torture wouldn’t make the cut (at least not outside of a news-gathering capacity).
This, of course, is a farfetched idea. It’s highly unlikely–especially in our current anti-regulatory political climate–that any lawmaker would seriously consider classifying Facebook as a broadcaster, to say nothing of rewriting digital content laws. In fact, the Trump administration is already targeting net neutrality rules, arguing that high-speed internet service should no longer be treated like a public utility.
The laws protecting these platforms from being liable for their content were written in the 1990s, and digital culture has dramatically changed since then. These once-tiny startups tinkering with the idea of “online content” are now leading the business world. They make billions of dollars off of uploaded material while eschewing any responsibility for it. In the wake of near-weekly social media fails, perhaps it’s time to force all these companies–Facebook, YouTube, Twitter–to be responsible for their content, just like any publisher.
Jonathan Taplin, author of the new book Move Fast and Break Things—who writes and researches the monopolistic tendencies of Silicon Valley companies—says the legal questions stretche back decades. He cites the Digital Millennium Copyright Act of 1998, a copyright law that limits liability for websites that host infringing content. As Taplin describes it to me, this act essentially “gave these companies what’s known as a safe harbor [so that] no one can sue them for anything that’s on their platform.” In short, this perennial problem of Facebook avoiding responsibility for murder videos uploaded to its platform stems from the DMCA.
Similarly, section 230 of the 1996 Communications Decency Act is what grants platforms legal immunity from the content they publish. But, as Ars Technica points out, it’s getting fuzzier and fuzzier whether or not what Facebook does with uploaded material means it should still be protected by this clause. As it exerts more control over how it delivers content–all in the name of maximizing ad revenue–it pushes more toward the actions of a publisher and not a platform, even if Facebook continues to claim it is unable to control what’s uploaded.
So maybe it’s time to rethink how the law views Facebook’s content. Just like other services that have become vital parts of Americans’ everyday lives—such as electricity, water, and increasingly broadband internet services—maybe Facebook itself is too important to be left unregulated, growing in size and impact with every passing day.
As Taplin puts it, the idea that these companies have no control over what the users put on their platform is “actually a fiction.” Websites like Facebook and YouTube have quickly figured out how to filter out things like pornography. The reason, he posits, is that raunchy content is unseemly for advertisers–they would pull their funding immediately if it was associated with porn. The only content that Facebook and other companies seem to feel responsible for–and act swiftly on–are posts that interrupt the flow of ad dollars. The way to stop this, says Taplin, is to remove the safe harbor so these companies become legally responsible for what’s posted.
This is precisely why shocking and abhorrent content continues to be uploaded onto this site–Facebook has no business imperative to filter out this content. Other online broadcasters do; they are legally and financially responsible for the material they put up. And until companies like Facebook are forced to confront the consequences of their users’ most disturbing instincts, the issue will surely persist.