Facebook Contradicts Its Senate Testimony in Court: Site IS a Publisher

Mark Zuckerberg
The Associated Press

Despite long claiming to be a platform and not a media publisher — including in front of the Senate — Facebook is now claiming to be a media publisher in a lawsuit filed against the social media giant by an app company, which described the claim as “a complete 180.”

Facebook has publicly denied being a media publisher every time there is an issue with content on its site. The company has long claimed to simply be a platform for their users to utilize and as a result, the social media firm cannot be held accountable for the content posted there. But in a recent lawsuit, the company has claimed the exact opposite.

Facebook CEO Mark Zuckerberg has denied that Facebook is a publisher publicly before the Senate. From Breitbart’s article at the time:

[Sen. Sullivan:] “So — which are you? Are you a tech company, or are you the world’s largest publisher? Because I think that goes to a really important question on what form of regulation or government action, if any, we would take.”

Zuckerberg gave a mealy-mouthed response, saying he “views [Facebook] as a tech company, because the primary thing we do is build technology and products”

Sullivan interjected: “But you said you’re responsible for your content. Which makes you kind of a publisher, right?”

Zuckerberg’s response: “I agree that we’re responsible for the content, but we don’t produce the content. I think that when people ask us whether we’re a media company or a publisher, my understanding of the heart of what they’re getting at is, do we feel responsibility for the content that’s on our platform.”

“The answer to that I think is clearly yes, but I don’t think that’s incompatible with [what’s] fundamentally at our core, being a technology company where the main thing that we do is have engineers and build products.”

Social media company’s such as Facebook are also protected by Section 230 of the Communications Decency Act, which currently grants them legal immunity for content posted by social media users to their supposedly neutral platforms. If Facebook admits to being a publisher, it could lose this immunity.

The Guardian reports that in a recently filed lawsuit, the app startup Six4Three alleges that Facebook CEO Mark Zuckerberg developed a “malicious and fraudulent scheme” to take advantage of Facebook users’ personal data and force other rival companies out of business. In response, Facebook has claimed that their decisions relating to “what not to publish” should be legally protected because the company is a “publisher.”

Sonal Mehta, a lawyer for Facebook, compared the social media firm to traditional media in the courtroom stating: “The publisher discretion is a free speech right irrespective of what technological means is used. A newspaper has a publisher function whether they are doing it on their website, in a printed copy or through the news alerts.”

Six4Three filed the suit in 2015 after Facebook removed app developers’ access to friends’ data. The company alleged that Facebook encouraged app developers to create apps for the social media platform by claiming that they would have access to large amounts of user data which it later revoked. Facebook has rejected all these claims.

Mehta argued that Facebook’s decisions relating to data access were a “quintessential publisher function” which was a “protected” activity. Mehta further stated that this: “includes both the decision of what to publish and the decision of what not to publish.” Six4Three’s attorney David Godkin replied: “For years, Facebook has been saying publicly that it’s not a media company. This is a complete 180.”

Eric Goldman, a Santa Clara University law professor, stated that Facebook’s sudden reversal on their public claims that they’re not a media company is extremely frustrating: “It’s politically expedient to deflect responsibility for making editorial judgments by claiming to be a platform,” he said. “But it makes editorial decisions all the time, and it’s making them more frequently.”

Jane Kirtley, a professor of media ethics and law at the University of Minnesota, echoed Goldman’s statements saying: “It just strikes me as fundamentally problematic. On one hand, you’re trying to argue you’re this publisher making editorial judgments. But then they turn around and claim they are protected under [Section 230] because they are not publishers.”

Facebook’s associate general counsel for litigation, Natalie Naugle, defended the company’s legal strategy stating: “Facebook explained in today’s hearing that we decide what content to make available through our platform, a right protected by Section 230. Like many other technology companies, we rely on the discretion protected by this law to police bad behavior on our service.”

Lucas Nolan is a reporter for Breitbart News covering issues of free speech and online censorship. Follow him on Twitter @LucasNolan_ or email him at lnolan@breitbart.com

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