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Power without pain

Social media “platforms” such as Twitter and Facebook are plainly publishers and should be treated as such

This article is taken from the July 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

In March of 2003, the former Defence Secretary, George Robertson, went to court against the Sunday Herald, a Glasgow newspaper. He complained that the paper had defamed him with a claim — wholly false — that he had been involved in a cover-up of the Dunblane massacre. He won an apology and damages.

This was not a routine case of a politician cashing in on journalistic failure. The claim that cost the paper was not made by its staff or contributors; they were not even aware of it until the peer’s complaint, made three weeks after publication. It was written in the “comments” section of an article on the paper’s website by a member of the public whose identity remains unknown. Nonetheless, the paper, after initial court hearings, settled with Robertson for a reputed £25,000 in damages. 

The Robertson case turned on the notion of editorial control. Though the paper argued that it could not be accountable for the scribbling of an electronic passer-by, it eventually conceded that — because it had the ability to delete and amend comments left on its site — it did have some responsibility for claims put into the public domain via the medium of its pixels and electrons. 

Internet giants can pay top dollar for lobbying “talent” to stave off any attempt to hold them accountable

In May 2021, Arlene Foster, the former First Minister of Northern Ireland, also went to court and won damages over another wholly false claim made online. Again, the author was not a journalist. Rather, he was a medical doctor called Christian Jessen who enjoys minor celebrity by reason of inane television shows and his ceaseless emission of progressive views — on matters including children, pornography and paedophilia — on Twitter. And it was on Twitter that Dr Jessen defamed Mrs Foster, for which he must now pay hundreds of thousands of pounds in damages and costs.

The Jessen case has aroused some comment partly because of the protagonists’ fame, but also as an act of schadenfreude. But revelling in Christian Jessen’s misery is not our primary purpose. Despite some similarities, these two cases differ in one crucial regard. Robertson’s damages were extracted from the organisation on whose site the libel was published. Foster’s will come from the author of the libel; the organisation on whose site it was published — Twitter Inc. — was not a party to the case and faces no penalty. 

This is, of course, inconsistent and nonsensical, and goes to the heart of one of the issues of the age. Social media “platforms” — not “publishers” — are able to facilitate, encourage and profit from unfettered, unfiltered and often unhinged communication without a jot of responsibility for that communication.

The consequences of that license are plain and grim: coarser, shallower discourse dominated by mobs of keyboarding woke warriors; the polarisation of political “debate”; and disinformation, promoted not just by state actors but liberal operatives of old-fashioned — when not actually bankrupt — media houses struggling to keep up. 

It is not just hard to see why highly profitable enterprises like Twitter get a free ride for their profits, when others suffer quite so much liability. Because companies such as Facebook and Twitter plainly are publishers, their commercial activities involve putting information into the public domain for widespread consumption and dissemination. They should be held to account as such. 

Donald Trump sought to treat them as the publishers they are, but that effort ended in the chaos of his last days in office

That they are not is testament to their wealth and thus power. Heavy with cash, internet giants can pay top dollar for lobbying “talent” fresh-picked from the upper branches of the political tree and set to work staving off any legislative attempt to hold them accountable for the “content” they put into the public square. So successful have they been that the very idea of treating platforms as publishers is beyond the realm of “normal” politics, a proposition that only a genuine outsider would seriously advance. 

That was Donald Trump, who understands better than any the power of the platforms. Latterly, he sought to treat them as the publishers they are, but that effort ended in the chaos of his last days in office. There is no chance that Joe Biden or his progressive cohorts will match Trump’s boldness. 

Trump may be gone from our small screens, for now, banished by online overlords including Nick Clegg of Facebook (who said the former President was to blame for violence in Washington at the end of his term), and so the platforms could not allow him to speak via their pixels for fear of more such discord.

But Trump was right about the social media platforms, their power and their publishing. The simple fact of his banishment proves it: if they were truly neutral platforms, his “content” and its consequences would be none of their concern. But in their eagerness to please the liberal mobs they have unleashed by silencing their orange-tinted bête noire, the social media barons gave the game away. They are publishers. They must be damned.

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