Come with me on a hypothetical journey, 3.5 readers.
There are three people: Alan, Barry and Carl.
Alan calls Barry on the phone and says, “Hey Barry, guess what? Carl is a big time fart face pederast who likes to rub hot sauce all over his naked body before he goes out at night into the middle of the forest to have sex with goats and worship Satan!”
Barry knows that Carl is of fine character and would never engage in such activities. Sure, sometimes he’s stared at goats for too long but he’d never act on any urges he may or may not have. Barry calls Carl and relays what Alan said.
Carl’s reaction? He’s furious. He hires a lawyer and sues the phone company.
The judge laughs. Why? Because the phone company is a utility. They provide the phone service. They don’t have an army of people monitoring everything that is said over the phone. Thus, it would be silly to hold the phone company responsible.
But wait. Suppose the phone company did get involved in your conversations. Suppose on every call, there was an operator in the background, bleeping out bad words and comments. “Carl likes to fuck goats” becomes “Carl likes to bleep goats.” Then that could be Carl likes to pet goats, he likes to buy ice cream for goats, whatever.
Maybe the operator even interjects. “Hey just an FYI I can’t verify the statement that Carl fucks goats. In fact, we polled 100 people and 78 out of 100 said they’re fairly sure Carl is not a goat fucker.”
If the phone company gets involved in conversations and accidentally lets a “Carl is a goat fucker” through, then the phone company is legally liable, I would think. Any legal experts out there want to get in on this and tell me if I’m right or wrong?
See, if the phone company isn’t involved in your conversations and just providing the means to make the conversation happen, then Carl can’t blame the phone company if he is called a goat fucker. However, if the phone company starts getting involved and one day an operator falls asleep at the switch while Carl is being called a goat fucker then the phone company can be sued. After all, the phone company began taking responsibility for the conversational content and they let a goat fucker allegation through unchecked. The phone company has gone from utility provider to content provider or…publisher.
This is a dilemma now faced by Facebook. Zuckerberg was questioned along these lines (obviously in a more dignified and intelligent manner without use of the words “Fuck” or “goat) before Congress – is Facebook a utility or a publisher?
If Facebook is providing the means to write posts and put up photos and video then they’re a utility. Alan posts, “Carl fucks goats!” and if Facebook is just a utility then Facebook isn’t responsible. Alan is the only party responsible.
But if Facebook is getting involved and banning content, taking content off, providing links to fact check sites to contradict the post, using algorithms to hide the post or put it lower in your feed etc, then an argument could be made they are liable if they take responsibility for content and a piece of defamatory content gets by them.
I realize there’s a gray area. The phone company can’t make Barry un-hear or forget about the goat fucker comment. Facebook can at least, if Carl complains, take down Alan’s goat fucker comment and even though Barry has now read the goat fucker comment, at least future sets of eyes won’t see it and question whether or not Carl is can be trusted to be left alone with goats.
So…I don’t know. Facebook is definitely venturing into some rocky, unprecedented terrain. By the way, I have no idea if anything I just said is accurate or even on point so…there you go.