Facebook and Google are arbitraging the data laws

As scandals over the misuse of personal information proliferate and data protection laws are tightened, technology companies are leaping to a surprising conclusion: they are publishers. Not always, of course, but when it suits them.

Facebook emphasised its role as a publisher with editorial discretion in a California court last week in an effort to block a lawsuit from a developer. Google attempted something even more audacious in a UK case this year involving the “right to be forgotten” in search engine results. It laid claim to an exemption for publishers of journalism, art and literature under European law.

Google’s legal sally was ridiculous and was squashed by the high court judge. “I do not consider that Google’s own activity can be equated with journalism,” he wrote firmly, ruling that the technology titan wanted, as one would, to have its cake and to eat it. It was claiming the data-handling privileges of publishers without trying to meet the same journalistic obligations as they do.

Such claims sit awkwardly with the customary insistence of Facebook, Google and other tech platforms that, in Facebook’s careful formulation, they are not “the arbiter of the truth”. You could almost hear the legal cogs grinding inside Mark Zuckerberg’s head as Facebook’s founder testified on the subject to the US Senate in April, “I agree that we are responsible for the content, but we don’t produce the content.”

Technology titans are dancing around the question of whether, and to what extent, they are publishers because of a shift in public opinion. Taking limited responsibility for what appears on social networks or in search results no longer sounds like making a stand for liberty. They cannot ignore the “fake news, clickbait, spam and data misuse”, cited by Facebook itself in one ad promising to do better.

Traditionally technology companies have argued that they host information neutrally, but that defence is slipping. As laws such as the EU’s General Data Protection Regulation (GDPR) start to bite, acting as a publisher with broader freedom than others to handle and to disclose personal information starts to be attractive. Why not, lawyers whisper, combine the advantages of both?

There are tempting opportunities. Facebook’s argument in California that it was allowed to exercise editorial control by cutting off developers’ access to photos published on its network by users’ friends is clearly valid. Six4Three, the app developer that has sued Facebook, was using this path to identify women in bikinis and display them on its Pikinis app, which is not the noblest of legal crusades.

It sounds odd for Facebook to claim the right to behave like a publisher in this manner, while insisting elsewhere that it is not a media company. But the safe harbour laws for “interactive computer services”, as the 1996 Communications Decency Act refers to them, give it exactly this right. Blame that act and its European equivalent for allowing internet titans ambiguous status.

I even have a little sympathy for Google, although its attempt to assume the guise of publisher was a blatant try-on. It received 2.4m requests from Europeans to have embarrassing search results removed between 2014 and 2017. That law weighs heavier on search engines than on publishers of sensitive material, which provoked its gambit.

Technology groups are not the only ones parsing the laws on information disclosure and those on data privacy to find which one suits them best. The Bank of England this week rejected a Financial Times request under the Freedom of Information Act to identify people who paid to spend time with Mark Carney, BoE governor. It cited a need to protect personal data under the GDPR.

This sort of thing is inevitable when laws overlap and the same item of information can be defined differently. Is a photo snapped in a public place publishable as journalism or protected as a sensitive piece of personal data that identifies the subject’s ethnic origin and physical or mental condition? At a technical level, when everything is broken into bytes, there is no simple distinction.

European law balances the right to freedom of expression with the right to privacy (which is hard to distinguish from data protection). But the law is not supposed to be a pick and mix. Those who want to facilitate the former and override the latter, whether as individuals or companies, must do so carefully and in the public interest.

If you want to be a publisher, go ahead, but do not kid yourself that it is an easy job. That status limits data privacy restrictions but involves other burdens. Unlike Facebook and Google, publishers bear full responsibility for their output, including the risk of copyright infringement and libel suits.

Even a publisher’s legal rights and liabilities vary, depending on which business operation is involved — a newsroom or the advertising department, for example. But when asked if you are a technology or a media company, “it depends on the occasion and the court” is not a satisfactory reply.

“I don’t think we have to be the publisher,” Sheryl Sandberg, Facebook’s chief operating officer, said last year. No, but you should make up your mind.

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