The past several years there has been growing concern over the dominant social networks using their market power to censor information. By censorship I mean that these networks have been imposing a bias in how they determine whether a given content violates their terms of service. An example of such bias would be a Conservative Evangelical Page having a post that asserts that homosexual activity is a sin removed for violation of a given terms of service for hate speech while allowing an LGBTQ page keep posts that call Christians Nazis who deserve death.
As early as 2012 people were starting to notice a particular pattern of bias in the social network cartel’s performance in enforcing their terms of service. There began to emerge a pattern of Leftist political and cultural bias in how site admins and moderators parsed the terms of service. There have been multiple instances of ex employees alleging such bias, including this instance, and this one. The resulting uproar resulted in Congressional hearings. There is a pattern of repeated censorship of high profile Conservative and Libertarian platforms. Dr Michael Brown of AskDrBrown program has written extensively concerning this very thing.
Starting in 2017 there has been a push in certain Conservative and Evangelical circles to start their own social networks. ChristianNetGuide was birthed in the same impulse. Niche groups need their own network that can better serve the interest of their communities than a large conglomerate network like Facebook or Twitter. While some of these have had moderate success, the social network cartel still has a lock on the general population. In fact according to data published by Statcounter , just seven networks control 99.5% of social network market share. What this means if you want to access the digital public square and have access to the general population, you must be able to use at least one of these networks.
A new model for social media.
The historic answer that is often given as that these networks are private companies, and as such, can do what they want. This response is found wanting once one realizes that these people have a virtual lock on the digital public square. Are we simply to surrender the public square to a few corporate fatcats to let them run it as they wish? If so then freedom of speech online is all but dead. This view, however, is not without challenge. There has been an upswing in talk concerning the legal status of social media. The current legal landscape presents a binary option of “publisher” and “public utility platform.” The public utility option is also sometimes called “common carrier.” Currently social media occupies a netherworld between these two options birthed in early twentieth-century jurisprudence.
What is a public utility?
A public utility maintains an infrastructure for a public service. The status of public does not mean that they are publically owned. Most public utilities are actually private owned. They are public in that they are a common carrier of one or more services available to the public. Telephone service, for example, are public utilities. Public utilities typically ( though not always) enjoy monopoly status in their markets. Public utilities, due to such market power, have restrictions placed on them that normally do not apply to private companies. The telephone company, for example, cannot terminate a customer’s phone service because they find offense in the political or religious views shared on the service. With very few exceptions, they are not allowed to monitor phone calls to filter for content.
There are two things that mark a utility. The first one is universal availability. Public utilities do not cater to niche markets but serve all comers in the marketplace. The second is pass through. Passthrough simply means that the end product of the transaction is not something that the utility must maintain on its own property. Water and electricity end up on a customers property for the customer to use as he wished. Phone calls simply pass through to the end point; the telephone company does not typically store conversations on a server.
What is a publisher?
A publisher disseminate content produced by itself and other parties. As owners of the mean of producing the published material it possesses full freedom of speech and editorial discretion. There are three essential properties to being a publisher. The first is that publishers typically have the ability to exercise prior restraint to prevent publication of material it does not wish to publish. Publishers also retain control of content after publication. I cannot simply take my favorite book, print off copies, and sell them. The publisher still has rights to that content. I would also add that publishers can serve any of a number of markets as they are not obligated to serve all comers
Is Social Media a utility or a publisher?
Social Media has elements of both. Like a utility they typically do not exercise prior restraint. Like a publisher they have control over content after it is published on their networks. Like a publisher, social networks are not obligated to serve all comers. It is this ambiguity that the social network cartel exploited to gain dominance over the digital public square. They marketed themselves to the public as a public service platform that anyone could use, but once they got market power over the digital public square they began to act as publishers. It is apparent that the current regime where the big networks always get the benefit of the doubt is lethal to liberty.
It is also apparent that the current dichotomy between utility platform and publisher is not adequate to describe the nature of social networking. A social network may be either one or have some mix. A social network may serve only an exclusive community ( not a platform) but otherwise act like a platform, A social network may fail to exercise prior restraint ( not a publisher), but do some gate-keeping to ensure that the terms of service are followed.
It is apparent that a new way is need to legally categorize this. If we are not careful, introducing government regulation will create greater problem. If you classify all social networks as publishers, you would knock smaller networks out of the market. This is because they would now be required to exerciser prior restraint to avoid being legally liable for the posts of its users. Only the big boys have the resources to do this in an automated way. Smaller networks would either have to use the tools of the big boys (which opens a back door for them) or resort to manual prior restraint which would grind most activity to a halt. If you classify social networks as a traditional utility platform, then you eliminate all niche networks and gatekeeping.
The paradigm that needs to emerge is one that is compatible with liberty principles. In a free society the right to freely contract is essential. The other side is that parties in a contract are required to do what they commit to do and subject to legal consequences for failure to do what one promises to do. Without this legal accountability to insure that parties in a transaction do what they commit to do, a free society ceases to exist in any meaningful way. The following is a guide on how to parse the legal status of a social network.
Social networks typically have more resemblance to platforms rather than publishers. The legal underpinnings of platforms need to be updated to accommodate the requirements of 21st century technology and communication. Any legal paradigm that governs social networks must also make provision for the minority networks that are actually a closer fit to a publisher to be set up as a publisher.
A social network should be considered a platform by default, unless they have explicitly identified otherwise and have a historic development consistent with their definition.
Unlike a conventional utility platform, a social network platform can have terms of service and a scope of service. Terms of service represents the rules under its users are subject. The scope of service represents which groups of users the networks serves. A social network may serve everybody or they may serve a defined subgroup.
Any terms of service that a social network platform enforces must be generally applicable and consistently enforced across the scope of their operations, with each individual person getting the same treatment under the rules. Any biases in their enforcement must be explicitly stated. For example, ChristianNetGuide serves the Christian community and enforces terms of service compatible with general Christian orthodoxy (not to be confused with Eastern Orthodoxy). Non-Christians and those who identify as Christian but deny this orthodoxy have no reasonable expectation that their perspectives will carry any weight or that they will even be allowed on the network. Social network platforms that fail to do this are subject to legal remedies.
If a social network uses any variation of the principles of intersectionality to give differing groups within their networksdifferent rights, they must disclose that they are using intersectionality with a user-friendly explanation of what intersectionality is. They must also disclose how and what weight is given to what groups.
Legal recognition of pre-existing social networks should take into account their historical development. Networks that marketed themselves as platforms to grow their user bases cannot, upon gaining market power, switch to being publishers. Networks such as Facebook, Twitter, and Youtube marketed themselves as platforms that serve everybody, and would be reckoned as such under law. These networks would be required to treat each iindividual the same under their terms of service, and be subject to legal action by injured users for failure to do so. If an existed social network wishes to switch to a different classification, it must reboot under a different domain name and require it’s current members to register with the new site as new users.
Social networks that have explicitly identified as publishers, have the historic development of publishers, and meet the legal criteria of publishers, shall have the same rights and responsibilities of publishers. Digital publishing platforms of established publishing houses shall be considered publishers.
Enforcement of rules based on this paradigm should be done under breach of contract law, with social network relationships being considered legal contracts under the law. I would caution against setting any government bureaucracy to regulate this using any executive power. To limit both the risk of government censorship and the risk of regulatory capture of the bureaucracy by the social network cartel, any and all regulation of social networks should be done through judicial, mediative, and arbitrative means in accordance with law.