According to section 230 of the law, IT companies, and therefore social networks, are not legally responsible for the contents that users publish on social networks, since they are “platforms” and not newspapers, which instead are directly responsible for the contents of the articles. According to Trump, who has decided to move apparently to take revenge on Twitter, when social networks behave like newspapers – deciding what can or cannot be published by users – they should be treated as newspapers also legally and therefore be held responsible for this which is published by their subscribers.
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Trump’s executive order does not remove Section 230, but demands that the Department of Commerce and Attorney General William Barr propose a change to the law to the Federal Communications Commission (FCC), the United States government agency that deals with telecommunications. The FCC, which is an independent government body and is made up of three Republicans and two Democrats, will have to decide whether to modify the section and consider social networks as newspapers and other editorial content: in particular, the FCC is asked to judge if social networks can lose the protections granted by Section 230 if they remove or block content “in bad faith”. Trump’s decision will therefore not have immediate consequences and may not have entirely, if the FCC does not decide accordingly.
“They had the uncontrolled power to censor, limit, modify, model, hide, alter virtually any form of communication between private citizens or a wider public,” said Trump of social networks by signing the executive order. “There is no precedent in American history for such a small number of companies that control such a large sphere of human interactions.”
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What is Section 230
Section 230 of the Communications Decency Act provides that companies active on the Internet are not legally held responsible for what users post in the spaces where they are allowed to do so (whether they are posts on social networks or videos on YouTube). The section specifies that these companies are not publishers and therefore only individual users can be prosecuted, but not the companies themselves. The section, however, gives companies the freedom to remove all content they deem offensive or violate their standards, as long as they do so by operating “in good faith”.
Section 230 was introduced in 1996, when the Internet began to spread all over the world, and particularly in the United States, in its purely commercial forms. It originated from two lawsuits filed against two services active at the time: CompuServe and Prodigy. Both offered their users forums where they could freely express themselves, but while CompuServe had decided not to moderate their content, Prodigy had a team of moderators who had to approve published messages or not.
Both companies were sued for some content published by users, but while CompuServe was not held responsible for not moderating the messages, Prodigy was considered to be on a par with a newspaper, given the moderation it carried out, and for this reason it was held directly responsible. After this decision, Internet companies lobbied for a law to fill the regulatory vacuum, and from there in 1996 Congress included Section 230 in the Communications Decency Act, which was part of wider telecommunications legislation. Section 230 is defined by several experts as “The 26 words that changed the Internet” and says this:
No internet service provider and no user of such services can be held responsible as a publisher or as an author of any information that has been provided by third parties.
Why Trump wants to change Section 230
Trump’s decision came a day after Twitter signaled his tweet as misleading: without deleting it, but adding a link to learn the facts. It was the first time Twitter made such a move after experts and observers criticized the fact that it had no protocol for dealing with false or misleading news published by characters with millions of followers for years. The decision had been strongly contested by Trump, who already in the past had accused Twitter wanted to “interfere” with the election campaign for the 2020 presidential election, which had therefore announced that it would soon take action against the social network.
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Trump’s tweet was about the vote by mail, which is being discussed a lot in the United States because of the coronavirus pandemic. Trump confidently claims that the postal vote would be “distorted” because a lot of ballots would end up being stolen, and that the governor of California (a Democrat) is sending “millions” of ballots, even to those who shouldn’t receive it, and will condition voters in explaining how to vote. All this information is false: several US states already use voting by mail with various control tools and there is no evidence of fraud; the governor of California did not send any ballot papers to citizens.
At the bottom of the two tweets that contain the text, Twitter has inserted a sentence in blue – “read how things are on the postal vote” – preceded by an exclamation mark: two elements that clearly signal the content as misleading. The text refers to an article by CNN which explains the many inaccuracies and forcing of Trump’s tweet.
On Friday, following the publication of the executive order, Twitter took a new measure against Trump, this time for a tweet in which the US president defines people who have been demonstrating in Minneapolis for a few days for the death of the “criminals”. African American George Floyd. In the tweet, Trump says he spoke to the governor of Minnesota, Tim Walz, and told him that “the army is with him to the end” and that “when the looting begins, it also starts shooting.” Twitter added a warning before the tweet, in which it is written that Trump’s words violate the rules of the social network on the exaltation of violence, however specifying that he has decided not to obscure them because “they could be of public interest”.
Trump’s executive order has been heavily criticized by those who think it may be a limitation to the exercise of free thought on the Internet. Ajit Pai, FCC president, said in a statement that the agency “will carefully consider any request from the Department of Commerce for changes to the rules,” but according to several experts, the FCC is unlikely to give a positive opinion on the change in the law.
Twitter responded to Trump saying that this executive order is a reactionary and politicized affront to a law of great importance. “Section 230 protects American innovation and freedom of expression and is supported by democratic values. Attempts to unilaterally erode it threaten the future of online debate and Internet freedoms. ”
This EO is a reactionary and politicized approach to a landmark law. # Section230 protects American innovation and freedom of expression, and it’s underpinned by democratic values. Attempts to unilaterally erode it threaten the future of online speech and Internet freedoms.
– Twitter Public Policy (@Policy) May 29, 2020
Facebook also commented negatively on Trump’s proposal saying that “we believe in protecting freedom of expression on our services, while protecting our community from harmful content, including content designed to prevent voters from exercising their right to vote. These rules apply to everyone. The repeal or limitation of section 230 will have the opposite effect. ”
In an interview CNBC Facebook CEO Mark Zuckerberg, however, reiterated what he said the day before to Fox News, in connection with Twitter’s decision to report a Trump tweet. According to Zuckerberg no private company can stand as a “judge of truth” and social networks in particular “should not be in a position to do so”.
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Publishers and platforms
Beyond the executive order issued by Trump, the issue of the role of large Internet platforms has been debated for a long time and not only in the United States, one of the few countries that dealt with it already in the mid-nineties by providing specific rules. The Web of the time was very different from the current one and the contents were published by users on forums and on their personal sites, usually made in a rather artisanal way. Today most of the interactions and content sharing takes place on social networks controlled by a few powerful companies, such as Facebook and Google via YouTube.
These companies almost immediately introduced moderation activities on their social networks, mostly to remove hate messages, while until a few years ago they had hardly ever intervened on the content of shared content. Things changed around 2016 with the election of Trump to the United States presidency conditioned by the presence of organized campaigns to spread false news, taking advantage of the various communication channels offered by social networks. The story led to a great debate and discussion on the so-called “fake news”, hearings in Congress and the assumption of some responsibility by large Internet companies.
Today the contents shared on social networks are subject to greater controls, with more precise limitations or the addition of warnings that indicate to users the presence of false or misleading information. According to some observers, this control activity – carried out more heavily by Twitter in recent times and with more nuanced approaches by Facebook and YouTube – actually makes the large platforms comparable to publishers and therefore far from what section 230 in the United States provides and similar laws in other countries.
Facebook and the others have always rejected this view and claim that they cannot be equated with publishers, because they still offer a different service and not aimed at producing their own content. The border, however, is extremely blurred and has become more and more as Facebook has equipped itself with editorial offices to aggregate and choose content, or YouTube has started to produce its own videos to offer on its platform.