There’s always a tweet. Donald Trump had long baited the public through his twitter account, but this time he went too far. In relation to the George Floyd case, he inveighed against rioters, with the stirring words: “Any difficulty and we will assume control but, when the looting starts, the shooting starts”.
These words would have been inflammatory without context, but they in fact echo the boast of a southern police chief against the civil rights movement. This was too much for Twitter, which put a trigger warning over it that it “violated the Twitter Rules about glorifying violence.”
President Trump and Twitter were already at loggerheads. He was already unhappy with their decision to fact-check him and this only added petrol to the flames. He has declared his intention to repeal section 230 of the Communications Decency Act 1996 and has issued an executive order issuing regulations to remove social media companies’ liability shield if they enter into censorship or any political conduct.
Donald Trump is motivated by his own political interest, of course. That doesn’t mean that he is wrong.
A lot of people have pointed out that Donald Trump has done very well out of Twitter, and that he is biting the hand that feeds him. But Twitter has done very well out of Donald Trump too. While he is president, Twitter is an indispensable news source. So let’s have a look at the rights and wrongs of this.
1996 was a different eon in the history of the internet. For starters, it still had a capital I. Amazon was two years old, Google was still two years off being founded. Facebook and Twitter were years in the future. No one was really making money off the internet and the question whether anyone even should make money off the internet was still controversial. So using laws from 1996 to regulate the internet is like using the Locomotive Acts to regulate road traffic.
The Communications Decency Act works on the basis that the internet companies are providing only the means of communication and not taking any responsibility for the communication itself. A similar approach is taken elsewhere in the world. As a judge in an English case put it, “persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers” (and as such do not owe duties in defamation law). The relevant EU directive provides additional immunities in which internet intermediaries can avoid liability for material which is hosted, cached, or carried by them but which they did not create.
All this is, of course, great for the internet giants. As a starting principle, they don’t have to concern themselves with what courses through their conduits; they need only provide the infrastructure.
This conceit long ago broke down. You only have to look at these platforms to see that the division is artificial. When was the last time that your water company pushed advertising material at you through the pipes?
The companies tacitly accept this. Facebook, for example, currently uses something like 15,000 contractors to remove pornography, terrorism, hate speech and other unwanted content. It, and the other large platforms, do so in an attempt to run ahead of the whip of legislation. They no longer seek to maintain that they have no role in relation to content.
It is against this background that Twitter has made its move against President Trump. And do you know what, he has a point. If Twitter is going to start policing the statements of elected politicians (no matter how loathsome you might find them personally), it can’t expect to be making final decisions about their appropriateness under the cloak of legal protections.
Does this mean that social media companies should be required to take responsibility for every statement posted on their platforms? That would be onerous indeed. However, there are intermediate points, where the social media companies need to show that they have taken reasonable steps to monitor what is said through them and to remove posts that do not meet a necessary standard.
Donald Trump himself is not going that far. He would be entirely happy for social media companies to revert to their hands-off approach so he can say what he likes.
Following the many controversies about data manipulation on social media, that approach is very much going out of favour. There is a widespread feeling that something must be done.
It should be noted that social media companies are now fighting on a playing field with old media companies that is very much tilted in their own favour, and one where some of the upstarts are now colossally wealthy in comparison to the old media companies. The public for nearly 25 years has benefited by having new media forms promoted. It now looks like time to seek to raise the standard of the material being pumped through those new media forms.
That will require more regulation. So Donald Trump may unwittingly have set in motion a train of events that will make it much harder for those who come after him to follow his path to power.