Thursday, December 10, 2020

Commentators (even me) have created a "publisher or platform" dichotomy in Section 230 -- and that split doesn't exist!

Post-election "Trumpist" protest


David Greene has a major article at Electronic Frontier Foundation explaining how the distinction of “publisher of platform” has been incorrectly cited, often on Twitter, even by me, when criticizing YouTube’s of Facebook’s removal or editing of content (placing of disclaimers) most recently with respect to the elections and Trump’s outrageous battle in the courts (even post “safe harbor day”).  There has also been a lot of “censorship” of COVID-related content, sometimes discussions of other medications that should really not be shut down just because of uncertainty or lack of establishment support.  Greene’s article is “Publisher or Platform? It Doesn’t Matter”. 

The 26 words, remember, were “No provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider.”

The wording doesn’t say “platform”.

Two important concepts explained in Greene’s article are “republisher” and “distributor”.  Generally, a republisher is still a publisher and a distributor is like a bookstore.  A service that does not alter content might be somewhere in between (like a webhost), more like a distributor if it does not know of actual libelous content.

But according to the lawyers, YouTube still has Section 230 protection if it removes post-election “misinformation” or even if it labels it and leave it up.  It may be a bit of a stretch that talking about minor errors in an election might get it banned, or that talking about a controversial but unproven medication for COVID gets removed, but it seems to be within protection as it now stands

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