Publisher Immunity

Online Content Protection and Various Endangering Forces

As our world becomes more reliant and dependent upon the internet, the ease in accessibility of information and ability to perform new actions online grows every day. Just like so many other things in life, the growth of our globalized world has unintentionally facilitated the growth of insidious industries, such as dark web enterprises that traffic drugs, weapons, animals, and in the worst cases, human beings.

Here in the United States we’ve attempted to establish laws to fight some of the most heinous crimes including sex trafficking. Recently, the Fight Online Sex Trafficking Act (FOSTA) was passed as an amending piece of legislation for existing criminal trafficking laws, however, it’s language was specifically aimed to close a legal loophole dating back to Section 230 of the Communications Decency Act of 1996 (CDA). The direct verbiage of Section 230 necessitated, “No user / provider of a computer service shall be treated as the publisher of information provided by another content provider”(Sec. 230, Comm. Decency Act ‘96). This language is the basis for a term known as “Publisher Immunity”, which entails the subversion of legal responsibility for a publisher / host from any outside third-party content on their site.

The change in FOSTA language ushered in a new standarding of “knowing” to determine culpability for content providers / hosts who allow content such as advertisements or listings in classifieds that directly contribute to the crimes of sex trafficking. The best real world example of this is, who hosted content directly linked to predatory sex traffickers by using the legal loophole from CDA ‘96 to skirt liability, and whom had their site seized by the DoJ earlier this year. For the complete FOSTA breakdown check out Marketing Land’s article.     

The FOSTA legal changes were not in any way designed to affect the internet industry outside of those who pursue actions with criminal intent. Critics of FOSTA have claimed that the legislation will weaken the overall notion of publisher immunity, however, in serious cases of urgency it remains necessary to halt any atrocious crimes being levied upon children.

These concepts are particularly topical in light of the recent instances of sites such as Youtube and Facebook removing and banning the content of controversial and dangerous figures spreading false new stories and conspiracy theories. The influence of this content is undeniable in our rapidly progressing digital age of business and personal lifestyle.

Several factors threaten the stability of publisher immunity in tangible ways, but the severity of the factors can be measured relative to how content immunity is valued by our society as a whole. 

How can publishers who have no legal authorship or ownership rights of 3rd-party content/advertisements listed on their sites be held responsible when the content is verifiably not theirs?

A growing sentiment in the debate around content responsibility is the notion that companies should take a “broader view” toward their responsibility for content on their platform. These specific words came from Mark Zuckerberg’s statement during his Cambridge Analytica scandal testimony for hearings with Congress. However, the concept of a broader view toward responsibility bridges an interesting gap between Facebook, Amazon, Google, and other web services viewing themselves as a “public good” rather than a privately owned and operated forum for social interaction. Zuckerberg’s commentary almost certainly has the potential to be cited and levied against Facebook and other content providers in future arguments advocating for greater publisher liability.

Other issues threatening the sanctity of publisher immunity include a legislative failure to grasp the reality of programmatic advertising, as well as the impact on local businesses, and the marketing ecosystem at large. A holistic lack of knowledge was demonstrated by Congressional officials during the Cambridge Analytica hearings about the sophisticated world of digitally automated advertising. Bills are drafted by members of congress and politicians who are unaware of the nuance of digital flows of content, unlike the age-old metaphor of documents being approved one by one through a single publisher prior to being posted online.

Legislators with an incomplete or unrealistic perception of the whole programmatic advertising system, are likely to craft laws that are incompatible with overlooked aspects of the system. The best example of this can be observed with local businesses being criticized by consumers on the basis of not individually screening ads they host on their site. This situation demonstrates a false perception held by consumers that advertisements operate on a singular review basis rather than sites being populated largely through automation.

The idealistic nature of these kind of concerns does not take into account the massive inefficiencies in running an advertising network in this way. Legislators wield unknown amounts of power when they attempt to draft bills built around narrow terminology and definitions, such as “increasing restrictions on an advertising network”, which has the capacity to unintentionally carry weight onto advertising agencies and software developers, whom the legislation was never intended to impact.

As far as a situation that could pertain directly to us at Hero, publisher immunity grants us the security to share content from third-party sources or businesses without the fear that we could be legally liable for their content being hosted on our site.

An example being: Company A hosts outside brand designs, logos, statements, etc. from Company B, who, unknown to Company A, actually violated trademarks and copyrights when assembling their company portfolio. Without publisher immunity, Company A can be held equally liable and responsible for the transgressions of Company B’s crimes.      

Publisher Immunity continues to be a topic of discussion and we are doing our best to stay ahead of the game and educate ourselves about it as much as possible. Look out for more updates this winter!