Should Safe Harbors Apply To TV Advertising As Well?
from the seems-reasonable dept
Paul Alan Levy alerts us to an interesting situation (and question raised) involving General Motors appearing to suppress speech that it did not like, and wonders if Section 230 safe harbors should apply in broader media, as well. The case involves a consumer group that was concerned that the bankruptcy restructuring that General Motors is going through would protect it from certain liability claims from owners of cars with defects. So, they took their case to the public by creating a TV commercial and buying airtime via Comcast. GM, rather than refute the content of the ad, simply told Comcast that the ad contained inaccuracies, so Comcast pulled down the ad. However, as Levy notes, this allows GM to suppress the ad at the moment when it would be most effective, without ever needing to prove the inaccuracies (or respond to the “accuracies” of the ad).
In the last few months, we’ve seen some claim that Section 230 safe harbors should be scaled back because it’s somehow “unfair” to treat online different than offline. I’ve taken issue with that line of reasoning, because in most cases the situations are quite different. The purpose of the safe harbors is to prevent the platform for being blamed for the actions of a user. But in a traditional newspaper, we’re talking about content that has been approved and put in place by an editor.
Levy takes that point into account, but suggests why expanding (rather than limiting) Section 230 might make sense here:
There are, of course, significant differences between the burdens that a cable company like Comcast faces with respect to assessing ads and the situation facing an Internet host (such as Comcast, wearing a different hat) that enjoys the protection of Section 230. There are only so many hours on which ads can be shown on cable; and when Comcast receives a proposed ad, it must take the step of placing those advertisements amidst its programming. Thus, Comcast is in a position to perform pre-broadcast review of the text. This is very unlike the situation facing the provide of an online interactive computer service, which allows thousand or even millions of users to place content online with not opportunity for review. And equally important, Comcast earns significant revenues from each broadcast of a single ad, and hence is able to offset its profits from those broadcasts against the cost of review. This is unlike the situation for most statements posted online, with respect to which the host earns tiny sums, at best, either through a modest monthly fee for web server space, or through advertising on the web page.
But the potential impact on speech is the same — the sponsor of a message on an important issue of public policy sees its message suppressed merely by claims of inaccuracy. Why should the broadcaster face the prospect of secondary liability for carrying the ad, and why shouldn’t the opponent of the speech be put to the burden of responding in the marketplace of ideas and, if it really wants to suppress the speech, why shouldn’t it have to go to court and persuade a judge that the speech is both false and defamatory before it gets the relief of suppressing the speech?
This makes a rather compelling point. While I still argue the entire concept of safe harbors like this shouldn’t be needed if common sense worked, since common sense isn’t so common these days, it does make sense to include safe harbors for situations like this where the company that acts as the “platform” has no reasonable expectation to thoroughly research the content first.