By: Jonas Atmaz Al-Sibaie
The advent of technology has left modern legal systems struggling to keep up. Over the last 10 years, legal systems across the world have been trying to find an answer to the precise question posed above: are social media platforms publishers or mere conduits? Unfortunately, no satisfactory answer has yet been found. Instead, individual legal systems have made incremental progress towards the development of such an answer.
In the United Kingdom, the answer that is currently provided for this problem seems to track back to the judgment of Mr Justice Eady in Bunt v Tilley. This subsequently approved judgment suggests that social media platforms are to be treated as digital equivalents to providers of noticeboards. Seeing as the provider of a noticeboard does not have any actual knowledge of the content of the post, they cannot be considered to have published the content themselves. As such, at least in English law, they cannot be treated as publishers. The approach overseas appears to be similar. In the United States of America section 230 of the Communications Decency Act also outlines that intermediaries are not to be considered publishers of posts made on their platforms. The Court of Final Appeal of Hong Kong, while differing in its reasoning, comes to the similar conclusion that internet intermediaries are not primary publishers, in the normal sense of the word.
While domestic legal systems appear to be in broad agreement that social media platforms are not to be considered publishers of posts made on the platform, the greatest advocates of the opposite view appear to be international bodies, particularly the European Union and relevant human rights bodies. In the area of human rights, there appears to be a unique interest in holding to account internet intermediaries for posts made on their platform. The most famous example of this is to be found in the judgment of the European Court of Human Rights in Delfi AS v Estonia (June 2015). There, a news agency was held to be liable under the EU eCommerce directive for vulgar comments to articles that were hosted on the platform. Similarly, the more recent judgment of the European Court of Human Rights in Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary outlines that ‘the conduct of the applicants providing platform for third-parties to exercise their freedom of expression by posting comments is a journalistic activity of a particular nature [sic]’. Such suggestions by international bodies indicate the contrary position to that adopted in domestic legal systems, namely that social media platforms and other internet intermediaries will be held liable for posts made on their platform.
However, significant progress is being made; on the 25th of March, the European Parliament voted in favour of the ‘Directive on Copyright in the Digital Single Market’. Article 13 of the Directive suggests that social media platforms are to be treated as publishers of the content available on their platforms, at least insofar as they may be responsible for copyright infringements caused by posted content. While this goes some way to addressing the question, the limited scope of the directive, in solely applying to copyright infringements in the European Union, limits its applicability in answering the question before us.
The issues that this debate raises are broader and far more important than they may seem at first sight. While the potential liability of platforms we all use on a daily basis is undoubtedly socially significant, this debate also speaks to our conception of human rights, specifically the right to freedom of expression. Should social media platforms be considered publishers, and thereby benefit from the right to freedom of expression? Does granting this right to social media platforms diminish the unique value of the rights given to persons? Do enterprising companies, with a view to make profit, deserve the protection of such rights if they fail to add value to society through performing the traditional media’s role of acting as a ‘public watchdog’? All these questions remain to be answered.