Facebook chief executive Mark Zuckerberg has repeatedly referred to Facebook as “a tech company” and not a “media company”. Photograph: Niall Carson/PA Wire
The dramatic injunction against Facebook and Twitter granted last Wednesday was rapidly amended by the court on Thursday. Mr Justice Michael White removed from the injunction the part that constituted a prior-restraint order requiring the social media giants to prevent, in advance of posting, identification of the two boys convicted of murdering Ana Kriégel. The part of the order requiring those companies to remove such postings once they became aware of them remained in place. And in that nuanced amendment lies the nub of an argument taking place worldwide about the regulation of social media.
Mr Justice White wisely sidestepped making any ruling on whether Facebook and Twitter should be regarded as “publishers”, in the traditional sense of being editorially responsible for content posted by users on their online platforms. If he had engaged in that deliberation, any judgment he gave would most certainly have ended up in the Court of Appeal and most likely in the Supreme Court also. He – quite rightly in my opinion – left that argument to take place in another court on another day.
There are implications for freedom of speech and “internet freedom” rights if laws are passed holding online platforms absolutely responsible for the content posted
The concept of treating Facebook and Twitter as “publishers” who can be held liable for the content that appears on their platforms is one resisted vigorously by those companies at every opportunity. Facebook chief executive Mark Zuckerberg has repeatedly referred to Facebook as “a tech company” and not a “media company”, an argument somewhat disingenuous when Facebook is the highest-used social media source of news in Europe.
The concept of ‘pre-moderating’ any content and preventing the upload of content to social media platforms is anathema to the ethos – not to mention the lucrative business model – of social media companies. The calls to hold social media companies responsible to take steps to try to prevent certain content – such as child pornography – appearing on their services does not meet any significant resistance. There are, however, genuine implications for freedom of speech and so-called “internet freedom” rights if laws are passed holding online platforms absolutely responsible for the content posted on those platforms.
In 2011, Wikipedia, along with other internet-based services, closed down for a day in protest against proposed US laws aimed at protecting intellectual property online. The proposed laws included measures restricting online access for IP-infringing websites to their web-based payment processors, and obstructing their web browser visibility. A similar one-day shutdown followed the passing earlier this year of the new European Union Copyright Directive, which imposes far higher obligations than previously applied to internet platforms to prevent and manage copyright infringement on their services.