Is Facebook a publisher or a platform? How one word allows tech giants to have their cake and eat it too

As Australians wake up, many will grab their phones to scroll through their social media to get up-to-date with the news and gossip of the day ahead of even speaking to their partner, or feeding the cat. And with more than 14 million Australian users daily, Facebook is one of the first sites many will hit up for their quick early-morning social media hit. But on Tuesday, rather than the usual cat memes, and updates from Great Aunt Linda in New York about her dinner being closely followed by the latest on the Lisa Govan mystery in Kalgoorlie, Aussie Facebookers were fed no proper news at all. In fact, they weren’t even being fed updates from some charities, emergency services organisations, or political figures (because in a pandemic and with an election coming up over here in WA, they weren’t important, right?), after Facebook decided to ban the distribution of news to Australian members and caught such organisations and individuals in the same net. For those who may have been hiding under a rock all week, it all kicked off when Mark Zuckerberg’s Facebook spat the dummy over Australia’s world-first proposed News Media Bargaining Code, which seeks to ensure media organisations, like ours, are fairly paid for the content they provide. Many commentators say Facebook’s actions this week have now firmly reopened the debate on not only what its moral responsibilities are, but legal too, pointing out that Facebook seems to pick and choose whether it is a “platform” or a “publisher” depending on which suits its needs better at the time. But just what is the difference and is it important? Agenda spoke to Curtin University professor of internet technology Tama Leaver to find out. Q. Facebook and most of the other tech giants claim they are merely “platforms” when it comes to content. What does that actually mean and does it matter? A. It definitely does matter. A platform is an infrastructure to house and communicate but it is not supposed to be the creator of that content and is not the responsible party for that content. A publisher creates its content and is, therefore, responsible for it. If I post a defamatory picture of someone on Facebook, that’s my problem not Facebook’s problem, so it’s the same deal for individuals as, say, news organisations. And news organisations in Australia have been targeted by defamation suits over social media comments on their pages. Q. So what protects a “platform” and do “publishers” have the same shielding? A. In the US there’s something called the Communications Decency Act, and Section 230 says, very specifically, that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. In short form that means that platforms are not liable for the content that other people put on them. And because the platforms are housed initially in the US, we more or less follow the same logic here. There are some exceptions to that. For example, in Australia, unlike the US, news services are liable for the comments that people make on their Facebook pages. Being based in the US, Facebook’s terms and conditions, like most platforms, specify which jurisdiction disputes would be heard in and in Facebook’s case it specifies a US State. Basically that’s them saying: “If you’ve got an argument with us, that’s where we hear it”. But a publisher 100 per cent based in Australia is regulated by Australian law. And those publishers are then working in several different legal and moral spheres they have to be conscious of that Facebook does not have to be. This makes the difference between what is a publisher and what is a platform fundamental. It is this legal difference that has allowed these platforms to grow, because it means even if there is a moral and ethical understanding that some content shouldn’t be there, that should be blocked and banned, it’s a moral understanding and not a legal imperative. Q. Hang on a sec, wasn’t Donald Trump banging on about Section 230 at one point? A. Yes, he was. He threatened to remove Section 230, which is what protects the tech giants, because he was cross with how they were labelling and removing content, including that posted by him. Q. So does he have a point? Many commentators have pointed out that Facebook was very slow to remove the extremely graphic content involved in the Christchurch mosque shootings in 2019, but have been very quick to ban Aussie news when money was involved. Shouldn’t they be more regulated? A. The Christchurch massacre footage was particularly difficult. Livestreaming on Facebook was relatively new then, they hadn’t got their head around it. This obviously forced them to get much better at removal and more responsive. If it was happening today they would get to it much faster. But it’s also that it popped up in literally tens of thousands of different places, so it wasn’t just that one version and everyone saw it, but that other versions kept coming back, slightly edited and slightly changed and the fingerprinting that said “is this the same video or not” just wasn’t advanced enough to capture it as it was going up. So I think that was a really high-profile example that shows you need to have those protections in place before you allow people to live-stream and try and fix it after the fact. After the Christchurch video was live-streamed there was a real appetite to try and regulate and there have been some bits and pieces happening on that front, but largely we still follow the tenets of Section 230 right now. But I think we have seen, from the digital platforms inquiry in Australia and beyond, that appetite for regulation is still there, even if we haven’t got it yet. And I think with the Facebook news ban this week, they’ve actually illustrated how bad they still are at this. I think the fact that they caught up health, weather and charity websites, which they have frantically and apologetically been turning back on, shows how bad they are at it and not how good they are. I think they wrote an algorithm that didn’t work, capturing far more than they thought. Q. What about Mr Trump, then? That wasn’t an accidental algorithm issue. What was the deal with blocking him? A. The difficulty around a lot of the Trump stuff was that Facebook and other platforms have been accused by conservative republicans of being voices of the left-wing and voices of the Democrats. And I think that Facebook was at such pains to try and prove, or try and pretend, that they were neutral — part of the whole thing about being a “platform” is that you are neutral and aren’t politically aligned one way or another — and I think they were at such pains to prove that to Mr Trump that they let a lot of things happen that they shouldn’t have. And I think Twitter was the same. It called Trump’s bluff, but it waited until two weeks before he left office to do it. Q. They say they are a platform, but when the Cambridge Analytica scandal hit in 2018, didn’t Facebook defend themselves in court using the First Amendment and claim they were a publisher? Haven’t they just tried to have it both ways? A. Yes, of course they have. I think while rhetorically the word “platform” does the work they need it to 99 per cent of the time, when there is an exception to that rule, they will claim the opposite. But I also think in their terms and conditions, where it probably matters the most, you sign an understanding that Facebook is a platform and is not responsible for what you do on it. Q. So do they publish anything? A. This is actually one of those big questions you aren’t going to get an easy answer for. It’s certainly curation publishing. Facebook definitely does curate and it makes both manual, and — largely — algorithmical decisions about which things get prominence. It basically creates a content stream for every individual that uses the platform. But whether that’s publishing or not is obviously a question that’s been asked for a while and generally the answer would be no. However, at the same time, what happens when they do commission original content? Is a bit of Facebook then a publisher, if not all of it? And it’s the same question we ask of all the other platforms, too. What happens if Google creates a YouTube video — it’s both a platform and a publisher, so there are blurred lines. Q. And what about those other platforms? A. Facebook, which owns Instagram, claims that is a platform, as one example. Really all of them, from TikTok to Snapchat, rely on these provisions and claim to be a platform and not a publisher because it gives them the legal protection that whatever an individual posts on that space, they are not liable for it. Honestly, it would be very hard to imagine how a social media platform could exist without relying on that clause. Q. Well, if a platform isn’t responsible for comments on posts, doesn’t it seem odd that publishers placing content on the platform aren’t protected from actions over comments? A. I completely agree. I think that the fact this is an issue here is a quirk of Australian law and that was set in a 2019 court case. I think Facebook would agree that doesn’t make any sense either, but then they don’t get any say in that realm. Facebook haven’t been lobbying for that change, but I think in a purely legal sense they wouldn’t have supported it because it prevents some organisations having a page because they don’t have the time to police the comments. And they want as many people on the platform as possible. Q. Will being a platform rather than a publisher be as important in the future? A.All the social media firms rely on being able to call themselves platforms. They rely on being able to say they are not responsible for content and if you took that protection away they would disappear under a mountain of lawsuits. It’s fundamental to the DNA of these platforms and it’s a legal requirement for them to operate in the way that they do today. I think it will remain an important distinction. Q. Will there be more scrutiny on platforms going forward, forcing them to be more morally responsible for content on them, even if not legally? A. There is a much bigger appetite for at least making sure that platforms moderate certain kinds of content. I don’t think that needs to make them the publisher, but I think that means make them accept that if they are part of society then there is a responsibility. There are some things that have always been policed. Child porn is the obvious example — that’s always been super policed and you’re not going to see that on a social media platform. But then you get into some grey areas. What sort of other thing is important enough? And I think we are seeing that the longer these platforms are around, the more socially responsible they are expected to be. The fact that Instagram now has very specific rules on imagery that glorifies eating disorders, for example, is because it’s been around for such a long time that it becomes an issue. There was a long conversation about what should and shouldn’t happen, the fact that if you search for something on Instagram it should trigger a warning. And that’s what they did. The system says “you might be looking for this sort of content, you might prefer to read these resources”, that sort of thing. So I think the longer they around, the more they are part of society, the higher the expectation is that they are socially responsible, even if the mechanism for that is not a question of whether they are a publisher or not. Q. Facebook saw its market value drop as a result of the Aussie ban this week. Is the fact that platforms are now IPO-listed important? A. Absolutely. As soon as you are publicly listed, your value is dependent on what other people think your value should be, not some concrete thing. So their reputation and their place in society and culture is one of the biggest indicators of what their own value is going to be. It makes a really big difference. Q. Or perhaps we should do as Trump suggested and get rid of Section 230? A. It gets really hard when we get to this conversation. When we talk about content, we aren’t just talking about news and videos from mates, we’re also talking about the messages I send to my sister, we’re talking about the memes we share — that’s so much content that making a platform responsible for that completely, legally, would make it very very difficult. The current principle is publish first, moderate second, I think if they were made liable it would be moderate first, publish second. And if that was the case, platforms would not move in real time the way we’ve become accustomed to. Q. Is there another way forward — not quite a publisher, not quite a platform? A. The idea that they are platforms will always be an underpinning, but there is an extra layer growing on top where social and cultural expectation is not looking through that lens in the same way. Q. If we can’t change the “platform v publisher” debate, should we at least be teaching the difference between the two? A. Increased understanding of way that the digital landscape works is incredibly important, so yes, absolutely. People need to understand that we don’t use these platforms for free. We are exchanging our personal data for the use of them — our personal data is valuable enough that these platforms aren’t charging us cash. And if we think of it as a financial transaction, both sides are putting things on the table. Once we understand that it isn’t free, it rather changes our understanding of the relationship. And, personally, I think news readership data on their platform is important to Facebook too, it’s a really good predictor of what you’re going to be interested in and allows them to target advertising.

Is Facebook a publisher or a platform? How one word allows tech giants to have their cake and eat it too

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