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Summary:

Twitter’s decision to suspend the account of a British journalist raises a host of questions about the company’s behavior, but one of the important ones is to what extent Twitter’s filtering and curation features could make it legally liable for the content flowing through the network.

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There are a whole host of issues raised by the case of Guy Adams, the British journalist whose Twitter account was recently suspended and then reinstated — including the potential clash between Twitter’s desire to forge commercial partnerships with media entities like NBC and its commitment to free speech. But the kind of behavior that Twitter engaged in by banning Adams also raises some other important issues for the company: as it expands its media ambitions and does more curation and manual filtering of the kind it has been doing for NBC, Twitter is gradually transforming itself from a distributor of real-time information into a publisher of editorial content, and that could have serious legal ramifications.

To recap, Twitter suspended Adams’ account several days ago because he posted the email address of an NBC executive as part of a stream of tweets criticizing the broadcast network and its Olympics coverage. According to Twitter, doing so was a breach of its “trust and safety” guidelines because the address was considered to be private (even though it was the executive’s work address). After widespread criticism of Twitter’s decision, Adams’ account was eventually reinstated on Tuesday, and the company’s general counsel Alex MacGillivray later wrote a blog post about the incident, in which he described what happened and apologized for how Twitter handled it.

Twitter doesn’t want to be seen as a publisher

As Matt Buchanan at BuzzFeed noted, however, it’s interesting to look at what Twitter apologized for and what it didn’t: the company didn’t apologize for suspending Adams’ account in the first place, despite the fact that the email address doesn’t really meet most tests of the term “private.” What MacGillivray apologized for was that a Twitter staffer — a member of the media team working with NBC on the official Olympics hub that Twitter runs in partnership with the broadcaster — was the one who alerted the network to the offending tweet, and instructed the company in how to file a complaint and have the account suspended.

This is important because it means that Twitter itself detected the offensive content and took action, rather than waiting for a user to report the message through the usual channels, and MacGillivray’s post goes to great lengths to make it clear that the company does not do this kind of thing on a regular basis, and will never (or should never) do so, saying:

“The Trust and Safety team does not actively monitor users’ content… we do not proactively report or remove content on behalf of other users no matter who they are… we should not and cannot be in the business of proactively monitoring and flagging content, no matter who the user is.”

MacGillivray says that the company doesn’t want to do this because it “undermines the trust that our users have in us” — and there’s no doubt that what Twitter did brings up all kinds of questions about how much of what the network does in such cases will be determined by its corporate partnerships with giant entities like NBC, rather than its commitment to being a distributor of real-time information. That’s a real issue for the company in the future, as I tried to outline in a recent post.

But in addition to all of that, proactively monitoring content and removing it also raises some fundamental issues around Twitter’s potential liability for such behavior (which probably helps explain why the company had its general counsel respond about the Adams case instead of a PR person or even CEO Dick Costolo). To the extent that Twitter is manually curating and filtering content that flows through the network — and possibly flagging offensive messages for corporate partners — it is acting as a publisher rather than just a distributor, and therefore it could be on the hook in a legal sense.

Publishers are treated differently than networks

In the United States, there are laws that protect internet providers of various kinds (what the U.S. Communications Decency Act calls “interactive computer services”) from defamation lawsuits and other forms of legal action based on comments or message posted by third parties. That’s because these kinds of services are defined as “distributors” or carriers of information — much like a phone company — and the idea is that a carrier can’t possibly read or listen to every message and check it for potentially offensive or illegal content.

If the company is filtering and selecting messages, however, and possibly letting certain parties know when a legally questionable one shows up, that is much more like what publishers do — and in many jurisdictions, publishers like newspapers are held to a different standard. Twitter has already been the subject of at least one lawsuit based on that principle: in Australia, a TV personality sued the network earlier this year for publishing allegedly defamatory tweets about her, and at least one lawyer commenting on the case made a direct comparison between what Twitter does and what a newspaper does, saying:

There’s not a lot of difference conceptually between Twitter or other internet publishing and an airmail copy of a newspaper; it’s just quicker.

So far, these kinds of cases have been few and far between. But the Adams case, and MacGillivray’s response to it, makes the point that this could be a significant challenge for Twitter in the future. Not only does it have to find some way to navigate between the demands of its users and the necessity of catering to advertisers and/or corporate partners like NBC — while still upholding its self-declared status as the “free-speech wing of the free-speech party” — but it has to be careful not to become too much of a curator or publisher of content, or face the potential legal liabilities that all publishers face. Welcome to the realities of being a media entity, Twitter.

Post and thumbnail images courtesy of Flickr users Hank Ashby and George Kelly

  1. Reblogged this on #Hashtag – Thoughts on Law, Technology, the Internet, and Social Media and commented:
    Is Twitter a publisher or a distributor? There’s a crucial difference

    There are a whole host of issues raised by the case of Guy Adams, the British journalist whose Twitter account was recently suspended and then reinstated — including the potential clash between Twitter’s desire to forge commercial partnerships with media entities like NBC and its commitment to free speech. But the kind of behavior that Twitter engaged in by banning Adams also raises some other important issues for the company: as it expands its media ambitions and does more curation and manual filtering of the kind it has been doing for NBC, Twitter is gradually transforming itself from a distributor of real-time information into a publisher of editorial content, and that could have serious legal ramifications.

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  2. eBiz ROI, Inc. Wednesday, August 1, 2012

    Interesting that Twitter would cross the line from distributor to publisher for NBC or anyone else. As pointed out, the legal implications are potentially significant. I have always viewed Twitter more as a distribution channel than a publisher.

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  3. Tell it like it is Wednesday, August 1, 2012

    Section 230 of the U.S. Communications Decency Act is one of the most immoral laws out there.

    Imagine say, a grocery store chain, having a law that granted them No accountability, for any food purchased there, any accident that happened there.

    It is a law that makes a magnet for crime. Give any corporation freedom from accountability, and you take away the motivation for being so, you Give that corporation, the chance to be lawless, without fear of the law.

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  4. Derrick Harris Wednesday, August 1, 2012

    I think Twitter is pretty clearly immune from liability in cases like this. Check out pp. 11-13 of this recent opinion for why CDA offers such broad protection (https://www.eff.org/document/order-granting-preliminary-injunction-barring-enforcement-sb-6251).

    From what I’ve read, it really takes a site being the sole provider of information (i.e., Twitter would have to be the source of the tweets) for the publisher label to apply. That’s why GigaOM is liable for what we publish, but most likely not for the comments.

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    1. Thanks, Derrick. I agree the CDA makes it harder for people to go after Twitter, which I mentioned in the post — but many countries don’t have anything equivalent to the CDA or its protections, which I think is a risk for Twitter as it expands internationally.

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      1. Derrick Harris Wednesday, August 1, 2012

        Good point. Guilty as charged of taking a U.S.-centric view ;-)

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  5. Maybe Twitter will rethink its strategy of having foreign offices – a UK judgment that would be barred by CDA 230 is unenforceable against Twitter in the US.

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  6. Sometimes twitter has mistakes upon suspension of some accounts. I have encounter the same problem too, and I emailed twitter why my account is suspended, good to know that they mistakenly caught my account as spam according to their automated spam filter. Still I thank them for reinstating my account few days ago. Hope this won’t happened again.

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  7. Twitter is in the media business. Dick Costolo has said so himself, although he’s trying to play cute with it by saying they are not a “media company” but a company “in the media business.” (more on this in my post here: http://therealtimereport.com/2012/07/27/a-walk-through-twitters-walled-garden/).
    The legal implications are very interesting, and probably one crucial reason Costolo is equivocating.

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    1. Thanks, Tonia — and thanks for the link to your post as well.

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  8. Agree with others with regard to U.S. CDA law. Simply exercising editorial discretion by removing something does not erase your immunity. Most terms and conditions reserve the right to do that and to remove or suspend accounts. Actually writing something or editorializing to change content is a different game. It’s the Olympics. It’s okay to be a little US centric, right?

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  9. Well, it is not that complicated. Twitter is a content-enabler, not a publisher neither a distributor.

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  10. 人間社会の複雑化が更なる広がりを見せて、一部の指導者のみでの人間社会管理が出来ない時代を作り出すであろう。特に脳内情報の瞬時同時多量連動を、一人ひとりが充足しないと社会混乱を、もたらす事に成るであろう。根本問題として、西欧主導の個別分け、専門分割の方式が飽和限界に達している事。総てが根っこで繋がっていて、この相互同時連関作用を満たすには、普遍・不偏・不変・を地球秩序の尺度で解明する時代であると、確信する。

    自然デザイン研究所50年(個人)
    小川 孝・71歳・日本神奈川・相模原市在住

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