Facebook, Twitter and Google before the US Senate to answer for their responsibility for published content

Jack Dorsey, Sundar Pichai and Mark Zuckerberg will be heard on October 28 by the US Congress in Washington.

Jack Dorsey (Twitter), Sundar Pichai (Google) and Mark Zuckerberg (Facebook) are back on the parliamentary grill. The three business executives, at the head of some of the most important and influential American online platforms in the Western world, are summoned before a committee of the United States Senate in Washington on Wednesday, October 28 at 10 a.m. (3 p.m. KST ). They will answer, by videoconference, the questions of elected officials, less than a week before the presidential election of November 3, in an atmosphere that promises to be stormy.

The subject of the debates: “section 230”, one of the key elements of American law, which defines the legal responsibility of Facebook, Twitter and Youtube (owned by Google) for the content posted by their users. The current framework is far from satisfying the Republican camp: Donald Trump has regularly, in recent months, assured of his next disappearance.

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This hearing, which will be led by Republican Senator Roger Wicker, asks the question in rather transparent terms: Is the immunity guaranteed by section 230 the cause of the bad behavior of the Big Tech ? “

The text, adopted in 1996, makes an important distinction between two types of sites: publishers, such as online media, which are legally responsible for the content they publish; and web hosts, such as Facebook, Twitter, forums or blogging platforms, which are seen as mere technical intermediaries.

Section 230 establishes as a legal principle that such hosts are not responsible for what is posted by individuals through their tools. It is this regulatory framework that has enabled the growth of social networks around the world, which can offer hundreds of millions of people the possibility of posting messages online, while preventing hosts from being legally responsible for potential problems related to these messages.

This protection for the platforms of the Net is however not absolute. To benefit from this, such publishing service providers must also remove, within a reasonable period of time, illegal content that is reported to them.

Similar legislation has been adopted in most democratic countries, including in Europe, and in particular France, where the law on confidence in the digital economy of 2004 provides very similar provisions.

  • What does the American right hold against Section 230?

For years, and even before the election of Donald Trump as President of the United States, the American right has considered itself the object of “Discrimination” from major social networks. Republicans claim, without providing any proof, that Californian companies like Facebook or YouTube, which they say work mostly with Democratic supporters, intentionally limit conservative messages.

This accusation is largely denied by the gigantic success of conservative figures on Facebook, Youtube, or Twitter: starting with the American president himself, who manages one of the most important Twitter accounts in the world.

But Donald Trump and his supporters consider that the “anti-misinformation” measures taken in recent years by Facebook, Twitter, Youtube and other platforms entangled in the circulation of false information are in fact anti-conservative measures.

They consider that by moderating messages these platforms act, in fact, like media, since they select the contents that may or may not appear. This reasoning is however very questionable in American law.

  • What do Republicans want to do?

It is still unclear. Section 230 constitutes the main legal basis of most large online services: modifying it substantially could have very serious consequences on their operation.

Republican elected officials have been repeating for several months that this text must be reformed, but without clearly stating how they wish to modify it. The October 28 congressional hearing foresees well “To examine whether section 230 (…) remains useful in today’s digital world ”, within the framework “Legislative proposals to modernize a decades-old law” and “Increase the transparency and accountability of large technology companies with regard to their content moderation policies”.

President Trump on his smartphone, June 18, 2020.

But for a number of observers, Donald Trump’s statements on section 230 are above all a way of exerting pressure. The president indeed brandishes the threat of a reform every time, or almost, that he comes into conflict with Twitter or Facebook, especially when social networks add mentions to his messages to indicate that they are disseminating false information.

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Measures of “Fact-checking” taken by the main social networks have nothing to do with section 230: even if this piece of legislation were deleted entirely, nothing would prevent Facebook or Twitter from continuing to publish warning messages or moderate content that they consider problematic, without being illegal.

  • What are the Democrats saying?

The American opposition has an ambiguous position on this subject. Democrats categorically reject accusations that social media is favorable to them. But some of the elected officials on the left also want to reform section 230.

A bill tabled last week by two Democratic MPs, the Protecting Americans from Dangerous Algorithms Act, plans to add to this section an obligation for web platforms not to “Promote or amplify” messages calling for hatred or promoting terrorism.

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In the United States as in Europe, many experts have been calling for several years for more transparency in the way in which social networks manage the display of messages offered to Internet users. Democrats seem to want to take advantage of the current discussions on Section 230 to impose more responsibility on the platforms on this point.

  • What is the position of Facebook, Twitter, Google?

Unanimously, the bosses of the platforms concerned, supported by almost all of the specialized lawyers, believe that an outright deletion of section 230 would put an end to social networks in their current form. In the absence of this protection, Facebook would, for example, be directly responsible, in civil matters, for all the comments published by its some two billion users around the world: an untenable position.

While a complete deletion of section 230 seems unlikely, substantial changes to the text remain possible. In the absence of a clearly defined project in this direction, the companies concerned have so far not ventured to make proposals. Some Silicon Valley bosses, starting with Mark Zuckerberg, have repeatedly asserted over the past two years that it may be necessary to strengthen social media regulations, but without specifying how or on what points.

  • What would reform change for Europeans?

In theory, a change in US law would not have a direct impact on European users. But in practice, social networks have historically always modeled their rules on American law. It’s a safe bet that a rule change in the United States would almost automatically be passed on to users around the world.

Section 230 has also served as a model for many laws around the world: any change to this text would likely lead to new bills in other countries.

  • What do we expect from the hearing on Wednesday?

The hearing of Mark Zuckerberg, Jack Dorsey and Sundar Pichai scheduled for the Senate is, above all, a political moment. In previous hearings of this kind, elected Republican officials have used a large part of their speaking time to criticize the “Censorship” which they believe would be the victims of online conservatives, and Democrats have used theirs to attack the way these platforms, in their view, allow hate speech and disinformation to proliferate.

One week before the election to designate Donald Trump or Joe Biden as the next President of the United States, the summoning of the big bosses of Silicon Valley is an opportunity for the deputies of the two parties to list their grievances on the role of social networks in the electoral campaign which ends: a highly sensitive subject, and regularly discussed.

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