Social Media Companies are not Publishers (for now)

The Story:

Twitter’s recent decision to fact check and otherwise tag certain of the tweets of the President of the United States has put it in the political crosshairs this campaign year: it and the other social media companies will likely have to defend a usually-obscure statutory provision that distinguishes them from traditional publishing firms in terms of their liability for content.

Background:

If John Smith sends a letter to The New York Times that falsely and maliciously accuses Mary Doe of being a serial killer, if the Times prints the letter, and if Doe later seeks compensation for the harm that has done to her reputation, she may plausibly cite in as a defendant not merely Smith, but the Times.

Yet if Smith makes the same statements about Doe in a tweet, the defamed person has no similar recourse to the “deep pockets” of the hosting institution, in this case Twitter. Although her recourse against Smith remains, social media companies are shielded from the liability of traditional publishing by sect. 230 of the Communications Decency Act (1996).

The Thing to Know:

In his escalating feud with Twitter, Trump has threatened to press Congress to amend or revoke section 230. Even short of that, he has ordered executive agencies to look at how they might reinterpret it. Ironically, Twitter’s decision to mediate some of Trump’s tweets has inspired a campaign to … force them to mediate tweets on penalty of civil liabilities.

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