Freedom of the press is often cited as a basic requirement of a genuinely free and democratic society. And it is true that a universal early symptom of advancing authoritarianism is curbs on a free press: look at Russia, look at Turkey, look at any historical example of a totalitarian takeover of any previously free society.
The US is one of a tiny number of countries to ‘enshrine’ freedom of the press in its constitution. Unfortunately, interpretations in the First Amendment are as outdated as those of the Second Amendment. The Second enshrined the right to bear arms in a violent and frontier society. Carrying a musket to protect your family and farm animals was fair enough in the 17th century. Inability and unwillingness to change the Second means America now suffers over 30,000 gun-deaths a year.
The outdated nature of the First is not such a lethal problem but, in some ways, may be as serious. And America isn’t alone, plenty of countries don’t have a written constitution but do have plenty of ‘press’ regulation that is completely outdated. The problem is all the regulation assumes a gatekeeper to publication that can, and should, take responsibility for what is published; they can be sued for defamation or they can be sanctioned by the regulator that licenses them.
The problem is that the way many people now receive their ‘news’, and reinforce their views is just from other people posting on social media platforms. And the name is the problem; social media self-describe as platforms and do it specifically to avoid the responsibility of being publishers: commercially they want to avoid the responsibility to not plagiarise or to pay properly for secondary use, and legally they want to avoid responsibility for defamation, or even national laws. Their attitude has been ‘point out an infraction and we’ll deal with it, or at least take a view’ – we’ll be a gamekeeper but not a gatekeeper, and we’ll make our own rules: but you can trust us – we’re good people.
There are clear signs that even the platforms themselves recognise this attitude is not sustainable. The backlash against the kind of bullying and hate speech they carry is in the news almost as much as the abuse itself. The cyber faking to rig elections is well recognised. And their own calamitously clumsy exploitation of personal data has trashed their fairy tale image of fundamental goodness.
Freedom to speak freely does not mean you have the freedom to shout Fire in a crowded theatre (Schenk case 1917). It is not against the law to be head-bangingly mad and proclaim all kinds of unhinged conspiracy theories, and it is not against the law to bark them out down the local bar, and it is not against the law the post them on your own Internet site or even the site of a collection of the like-feeble minded. The genuinely curious and the genuinely credulous will find you with appropriate use of a well-known search engine.
But if your madness is dangerous, defamatory or plainly damaging to the fabric of society you should not be able to post it on channels that will deliver instant access to the globe. Particularly not ones who say; ‘hey, we’re just a wall; we don’t get to police who pins something up’ – but then run curation algorithms that promote content according to its sensationalist quality and then promote it again when its sensationalism means it attracts more traffic.
Social media platforms are publishers, whether they like it not. And regulators have to face up to the task, admittedly incredibly difficult, of setting some rules, whether they like it or not.
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