I do want to thank the Techdirt crew for publishing this. I did expect a skeptical reception, which is what I've got, but I think the forum has been quite hospitable.
First I want to clarify again that I am not talking about imposing liability for ads--just removing a liability shield. Whether there is liability depends on the state of the underlying law. Also I am not saying there are not tradeoffs--just that I think they're worth it.
The strongest criticisms of this proposal I think center around potential harms to small publishers, or small advertisers. As to small publishers, while I think they (along with other entities along the ad delivery chain) would be potentially liable, I think they would not be the most inviting target for a lawsuit. But given the vast disparities in bargaining power between the smallest publishers and the major ad networks I think some measures need to be taken to ensure that liability isn't shunted towards those least able to afford it, and to insulate small publishers from the effects of harassing lawsuits that result from running ads they had no practical means to review.
As to small advertisers, I think it is true that if ad rates go up--which I assume to be true for the purpose of this discussion--they might be able to afford fewer ads. But the effectiveness of any given ad might be higher. In any event I think the question of what the actual effect is on small advertisers is an empirical question, or at least one that needs to be answered through some sort of economic modeling, and not speculation. An argument against nearly any conceivable regulation is that large players would be better able to afford it, and that smaller players would therefore be at a relative disadvantage. Additionally, a current common argument against privacy laws, or laws designed to limit targeted advertisements, is that they would harm small businesses that can advertise only through targeted ads, or not at all. The question to be answered is whether this is true in a specific instance, and if so, whether the tradeoff (increases due privacy, fewer scams, better enforcement of civil rights law) is worth it. Just as I think it's not established that contextual or other privacy-respecting ads cannot make up for any losses deriving from fewer individually-targeted ads, I am not sure that the standard liability that has always existed for print ads is an insuperable barrier to small business advertisements. Small and local businesses have been a mainstay of print and broadcast media advertisements for decades after all.
I have heard one criticism that centers around the moderator's dilemma--that is, where if a site moderates content, it potentially incurs more liability than if it just allows posts to go public site unseen. A regime where liability was based only on the "actual knowledge" standard might indeed bring that about--where ads that were reviewed create liability, and ads that were not reviewed don't. I just think this is not likely outcome. Removing Section 230 for ads does not imply any particular liability regime. However, even if some regime or another was based on actual knowledge only, I think it would be modified shortly thereafter if it led to perverse outcomes. Imagine a print publication that published print ads according to some automated process in a jurisdiction where most precedent stated that "actual knowledge" of the contents of a message was required for liability. If that started leading to bad results I think the knowledge standard would become "constructive knowledge" or "recklessness" pretty quickly. The common law evolves. I do think it is important to note that much of the discussion of a "knowledge" standard when it comes to speech torts simply refers to scienter which can include recklessness, negligence, constructive knowledge, and the like.
In response to an exchange in the comments between Mike and Joseph Jerome I do want to say that while I am personally skeptical for privacy reasons of targeted ads, I think having a different liability regime for ads based on whether or not they were targeted doesn't seem right to me, because you can't tell based on looking at an ad whether it's targeted. But whether something is an ad at all, is typically disclosed, or at the very least more obvious. That being said that while I do have a certain wariness of the "it will entrench Google and Facebook" argument I am open to it if it is thoroughly backed up, not simply assumed as the consequence of any particular legal change. Thus my comments above. Here, I don't see how ad rates going up across the board, if that is indeed a result, would necessarily entrench the largest ad providers.
The point of a proposal like this isn't everything stays the same, but with a different legal regime about potential liability. The point is the change the incentives of all players such that there was more responsibility for ads--the desired outcome involve changes up and down the stack. My biggest worry, stated above, is that disparities in bargaining power lead large ad providers to continue to evade liability by offering “take it or leave it” deals.
Ads are a category of content where there is a clear opportunity for review, and where in fact today, there is more review. I think changing the incentive structure around online ads could lead to fewer abuses of the kind detailed in the piece, and that it is not unreasonable to expect all actors online to take responsibility for who they do business with, and to stand behind the content they take money to publish (with the various caveats given above).
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I think it would!
I do want to thank the Techdirt crew for publishing this. I did expect a skeptical reception, which is what I've got, but I think the forum has been quite hospitable. First I want to clarify again that I am not talking about imposing liability for ads--just removing a liability shield. Whether there is liability depends on the state of the underlying law. Also I am not saying there are not tradeoffs--just that I think they're worth it. The strongest criticisms of this proposal I think center around potential harms to small publishers, or small advertisers. As to small publishers, while I think they (along with other entities along the ad delivery chain) would be potentially liable, I think they would not be the most inviting target for a lawsuit. But given the vast disparities in bargaining power between the smallest publishers and the major ad networks I think some measures need to be taken to ensure that liability isn't shunted towards those least able to afford it, and to insulate small publishers from the effects of harassing lawsuits that result from running ads they had no practical means to review. As to small advertisers, I think it is true that if ad rates go up--which I assume to be true for the purpose of this discussion--they might be able to afford fewer ads. But the effectiveness of any given ad might be higher. In any event I think the question of what the actual effect is on small advertisers is an empirical question, or at least one that needs to be answered through some sort of economic modeling, and not speculation. An argument against nearly any conceivable regulation is that large players would be better able to afford it, and that smaller players would therefore be at a relative disadvantage. Additionally, a current common argument against privacy laws, or laws designed to limit targeted advertisements, is that they would harm small businesses that can advertise only through targeted ads, or not at all. The question to be answered is whether this is true in a specific instance, and if so, whether the tradeoff (increases due privacy, fewer scams, better enforcement of civil rights law) is worth it. Just as I think it's not established that contextual or other privacy-respecting ads cannot make up for any losses deriving from fewer individually-targeted ads, I am not sure that the standard liability that has always existed for print ads is an insuperable barrier to small business advertisements. Small and local businesses have been a mainstay of print and broadcast media advertisements for decades after all. I have heard one criticism that centers around the moderator's dilemma--that is, where if a site moderates content, it potentially incurs more liability than if it just allows posts to go public site unseen. A regime where liability was based only on the "actual knowledge" standard might indeed bring that about--where ads that were reviewed create liability, and ads that were not reviewed don't. I just think this is not likely outcome. Removing Section 230 for ads does not imply any particular liability regime. However, even if some regime or another was based on actual knowledge only, I think it would be modified shortly thereafter if it led to perverse outcomes. Imagine a print publication that published print ads according to some automated process in a jurisdiction where most precedent stated that "actual knowledge" of the contents of a message was required for liability. If that started leading to bad results I think the knowledge standard would become "constructive knowledge" or "recklessness" pretty quickly. The common law evolves. I do think it is important to note that much of the discussion of a "knowledge" standard when it comes to speech torts simply refers to scienter which can include recklessness, negligence, constructive knowledge, and the like. In response to an exchange in the comments between Mike and Joseph Jerome I do want to say that while I am personally skeptical for privacy reasons of targeted ads, I think having a different liability regime for ads based on whether or not they were targeted doesn't seem right to me, because you can't tell based on looking at an ad whether it's targeted. But whether something is an ad at all, is typically disclosed, or at the very least more obvious. That being said that while I do have a certain wariness of the "it will entrench Google and Facebook" argument I am open to it if it is thoroughly backed up, not simply assumed as the consequence of any particular legal change. Thus my comments above. Here, I don't see how ad rates going up across the board, if that is indeed a result, would necessarily entrench the largest ad providers. The point of a proposal like this isn't everything stays the same, but with a different legal regime about potential liability. The point is the change the incentives of all players such that there was more responsibility for ads--the desired outcome involve changes up and down the stack. My biggest worry, stated above, is that disparities in bargaining power lead large ad providers to continue to evade liability by offering “take it or leave it” deals. Ads are a category of content where there is a clear opportunity for review, and where in fact today, there is more review. I think changing the incentive structure around online ads could lead to fewer abuses of the kind detailed in the piece, and that it is not unreasonable to expect all actors online to take responsibility for who they do business with, and to stand behind the content they take money to publish (with the various caveats given above).