In effect, the state is saying: we'll exempt you from the normal responsibilities you have when you say something, as long as you're just forwarding a message. The change is now that there's a caveat: you must now (sometimes) make reasonable efforts to avoid forwarding illegal content.
Frankly: as long as facebook (e.g.) is more than a dumb pipe this isn't merely a question of getting the laws right; it's intrinsic. You cant exercise editorial control (which they do, even if it's sometimes algorithmic) without being responsible for what you decide to publish.
So we get to choose: either platforms need to really be dumb pipes (i.e. facebook's entire model is essentially completely illegal), or they need to take responsibility for what they say, even if its forwarded content.
I think we'd have much more constructive speech online if platforms were forced to make such a choice: to the extent that they filter, they're responsible for what they let through.
I am not. I am talking about incentives.
> In effect, the state is saying: we'll exempt you from the normal responsibilities you have when you say something, as long as you're just forwarding a message. The change is now that there's a caveat: you must now (sometimes) make reasonable efforts to avoid forwarding illegal content.
As far as the constitution is concerned, there are no "normal responsibilities". The normal responsibility is for the state to not interfere with speech, everything beyond that is subject to the boundaries set by the constitution, not the other way around.
> Frankly: as long as facebook (e.g.) is more than a dumb pipe this isn't merely a question of getting the laws right; it's intrinsic. You cant exercise editorial control (which they do, even if it's sometimes algorithmic) without being responsible for what you decide to publish.
Either it is intrinsic or you have to get the laws right. Laws are what defines responsibilities, so I would say it's pretty obviously not intrinsic.
> So we get to choose: either platforms need to really be dumb pipes (i.e. facebook's entire model is essentially completely illegal), or they need to take responsibility for what they say, even if its forwarded content.
... or they get to exercise editorial control of sorts without being held responsible.
I mean, there might be arguments in favor of that approach, but just claiming that it's so isn't one. Also, I think it's really unhelpful to insist on a binary distinction between "publisher" and "transport service". A newspaper was a publisher. The post service was a transport service. A Facebook really just is neither, and there is no reason why everything has to fit into one of these two categories. A car is not either new type of horse or a new type of factory. It's just a car.
> I think we'd have much more constructive speech online if platforms were forced to make such a choice: to the extent that they filter, they're responsible for what they let through.
I'm not so sure, I suspect that just leads to two extremes with nothing in between: Completely unmoderated exchanges where trolls reign and strictly regulated ones where nothing remotely controversial can be said.
Rather I would think that deletion/blocking should be required only when ordered by a judge (or possibly a sort of low-level judge for preliminary decisions on such matters), where you have legal options to defend your right to speak, and where the judge has no incentive to decide one way or the other. So, there could be a penalty for when Facebook doesn't follow the order, but not for when they don't recognize something illegal as illegal.
As to the intrinsic responsibilities of editorial control: Sure: legal obligations are what you define them to be. But escaping legal consequences doesn't mean you're not conceptually responsible; it simply means the law isn't perfect. And of course there are lots of ways you can choose to distribute responsibilities. So perhaps I should of said: I don't see a way for the considerable influence that media platforms have to be held accountable except if they are also responsible. The obvious alternatives are that that power is completely unchecked, which is harmful, or that somebody else dictates what they can do - which I kind of doubt will work in the first place, and even where it does, that means you better have a lot of faith in those controllers. Simpler and more reasonable for the media platforms to actually be responsible for what they say, and not maintain the fiction that they have no influence or effect on the messages they "transmit".
As to requiring a judge to get involved before censorship: I think that's actually worse than complete immunity. Involving a judge makes it appear as if there is control, and as if media platforms are held to some kind of unbiased or at least fair standard. But the whole point of a modern media platform is that you don't need manual control; and indeeed you can never keep up with manual control. Algorithms will win against judges every single time, simply because no society can have that many judges (not to mention even judges aren't a panacea: fairness isn't trivial). Judicial interventions will necessarily be only in such tiny fractions as to be meaningless - and even if punishment and enforcement were scaled to absurd levels (with their own costs), well, media platforms are international behemoths. A judge may well rule some post to be illegal, but many posters will be beyond the judges reach.
If media platforms get to exercise editorial control of sorts without being held responsible, then they will influence the debate in ways that undermine the very reason for freedom of speech to exist in the first place. I kind of expect that outcome is what will actually occur, and the consequences in the long run are hard to predict, but I'm guessing: dire.
The incentives for a media platform are all wrong. They want to push messages that encourage using the platform; and as such they're going to be enablers for needless tribalism, short, poorly-thought-out posts, for anybody who is willing to pay to influence regardless of the merits, for trying to shield users from being confronted with evidence that they're wrong, and more.
If you will: I think people have started to accept that the idea that metadata is somehow something completely different from data is false. Metadata is data, and similarly; the meta-control a media platform has over messaging is really huge. If anything: the fact that they don't actively edit the contents of the messages only grants them more power, because it makes the control they do have opaque and hard to judge the impact of. I don't mean to imply they're intentionally Machiavellian or whatever here: it's just that indirect, hard-to-observe control is really hard to value.
---- So, to go off on a tangent....
I sometimes wonder what the historical figures involved in the evolution of modern freedom of speech would think if they saw what actually happened. For one; we've grown to utterly fetishize the concept to the extent that rational thought has little to do with it. But simultaneously, it's like we're walking around with blinders on: we don't have freedom of speech, and never will be able to get it absolutely, and the idea that that would work or was the idea some long time past is... well, not exactly founded in anything.
And then, of course, there's the fact that obviously times change, technology changes, society changes, and it's pretty crazy to think that concepts like freedom of speech are somehow impervious to all of that. What worked hundreds of years ago may actually need some tuning. Yet that idea isn't exactly well received in my experience, at least not in the US: thou shalt not question The Founders.
Ironically, there have been some pretty major changes to how we use freedom of speech, and in ways that makes me feel like it's gotten worse. As if we're playing telephone/chinese whispers, and people are going through the motions even if the motivation to do so would seem obviously lacking to those in the beginning of the chain.
There have been obvious changes such as copyright evolution; but also other changes; e.g. lobbying was for a time seen as fraud; not protected speech.
So on the one hand we cry about the inviolability of free speech; yet on the other we've changed what that means repeatedly, and the world has changed too. I don't think that's a healthy mix.
Social media (and more broadly the data-science era) are still young. So far, the way they have affected public debate is probably still relatively random. There may have been been damage, but it's probably rarely been malicious. So whether you support the status quo - social media free from control and any obligations to the public - or a more constrained media somewhat depends on whether you think that's going to stay that way.
I'm not betting on it.
But what is "conceptual responsibility"? The thing is, responsibility is not really an aspect of reality, it is almost completely a social convention. Reality only shows you causal connections, and causal connections certainly are an important factor influencing how we distribute responsibility, but they do not determine responsibility in any simple way. Power plant operators are among the causes of people dying of electric shock. Does that mean that we consider them responsible? Generally no--because we as a society have decided that people running power plants is an overall benefit to society and we can prevent accidents in other ways and a whole bunch of other reasons.
So, yes, you can have opinions about how responsibilities should be distributed differently, but I don't see any sort of "inherent responsibilities".
> Simpler and more reasonable for the media platforms to actually be responsible for what they say, and not maintain the fiction that they have no influence or effect on the messages they "transmit".
Well, first of all, I would object to the idea that because you have influence, you should necessarily be responsible. Telcos also have a massive influence in principle. But, I would argue for good reasons, we have decided that they are not responsible.
Now, that doesn't mean that I think Facebook should not be held responsible for anything. But the problem that I see is that this kind of regulation does not hold Facebook responsible for what Facebook is saying/doing. It instead holds Facebook responsible for what other people are saying, with an in incentive to prevent speech that would be perfectly legal (and ethically somewhere between fine and really important), while actually missing the goal (or is it even the goal?) of holding Facebook accountable for the power they are exercising.
> But the whole point of a modern media platform is that you don't need manual control; and indeeed you can never keep up with manual control. Algorithms will win against judges every single time, simply because no society can have that many judges
Well, but what does that mean then? It's not obvious how judges could keep up, so let's forget about human rights?
> If anything: the fact that they don't actively edit the contents of the messages only grants them more power, because it makes the control they do have opaque and hard to judge the impact of. I don't mean to imply they're intentionally Machiavellian or whatever here: it's just that indirect, hard-to-observe control is really hard to value.
Yes, I agree. And that is precisely why I think this kind of regulation is dangerous. It causes collateral damage, and it doesn't even address the actual problem. Suppose this actually made hate speech go away. Does that change anything significant about the opaque and hard to judge power of these organizations? Or doesn't it rather just help hide it even better?
If you will, we need to restrict underhanded manipulative speech of Facebook, not hate speech of its users. Or at least, if we restrict hate speech of its users, we shouldn't do it by incentivising Facebook to exercise more underhanded manipulative power.
As to the human rights: there's no point in spending a lot of money deceiving ourselves; better not to pretend and face up to the fact there's a problem, than to delegate it to a legal system that will simply make matters worse. I'm not objecting in principle to a judicial solution; I just don't see how that has a hope in hell of doing more good than harm.
I agree this kind of law is likely to cause collateral damage, but I don't believe the collateral damage is going to be worse than the alternative. But it's clearly not ideal, sure! But the point really should be: what's the alternative?
I don't think there are any simple, politically acceptable alternatives. I mean, you could try to turn em into common carrier's or the like, or break up the companies, but that's all fairly extreme - try getting that past the lobbying.
The very first comment in this thread:
"A couple of comedians and satire magazines have been hit"
Yes, there are limits to the freedom of speech (and technically, there is not even freedom of speech in the German constitution, but rather freedom to express one's opinions). But satire is generally very firmly within the bounds of protected speech, the constitutional court has had to deal with such cases many times, and it has found over and over and over, some of the cases involving just the satirical magazine referred to above, that satire is almost always within the bounds of where the state may not interfere with the freedom to speak. The constitutional court has explained at length the importance of satire and controversial art for political discourse.
So, no, the harm of the messages limited is not clear at all.
> Furthermore, you're trying to draw some really broad analogy, and find that facebook is the government and thus that constitutional protections apply to enforcement by facebook.
No, nothing like that. Facebook is not bound by the constitution. The constitution only binds the state. Facebook may delete satire as much as they like. But the state may not incentivize Facebook to delete satire, because the state is bound by the constitution, and the state is forbidden from restricting satirical speech (for example), and by extension from making other parties restrict satirical speech. It's not Facebook's actions that go against the constitution, it's the state's actions that incentivize Facebook that go against the constitution.
> and note that even if this were direct government censureship it's not even clear this would be a bad idea or whether the hypothetical governmental corolloray would be constitutionally prohibited (which is particularly unclear since nobody knows exactly what that might be).
Well, except that it is. The constitutional court has dealt with that. Restricting satirical speech is an almost total no-go for the German state, the constitutional court will not have that.
> Facebook is excercising disgression in which content to publish to whom, and when.
That's indeed a good point, though on the other hand, they probably will say that they try to act as agents finding useful information for their respective users rather than as publishers selecting what they consider interesting. That's also a lie, of course, but still with some truth to it. Really, what they are doing doesn't really fit directly any traditional roles.
> So regardless of the original authors rights;
But you cannot disregard the constitutional rights of the authors because you want to achieve some other goal, that's the point of constitutional rights.
> I think we as societies still need to figure out what the heck the age of data science means for free speech.
Well, yeah, I guess society still needs to figure it out, but the answer really isn't that difficult:
Communication needs to be freed of surveillance/advertisement needs to be separated from communication.
Probably not really possible, but this fusion of communication technology with advertisement/marketing/manipulation technology is a huge problem and ultimately at the heart of all of this. The need to get people to pay attention to their advertisers corrupts all other actions of Facebook, Twitter, and the whole bunch.