Publisher or public forum?


20 September 2019

The company is facing increasing pressure to more clearly delineate its role as an arbiter of online content.

“The most important lawsuit in America right now, and perhaps the free world, is Prager University v. YouTube,” said Eric George, the attorney of the non-accredited online university, in a recent video posted to its channel.

At the end of August, PragerU argued before the Ninth US Circuit Court of Appeals that the technology company violated its First Amendment rights by limiting access to and demonetising dozens of its videos.

PragerU’s attorney accused YouTube of judging content “by their own political and social criteria”

The videos — which are still viewable but flagged as “inappropriate” and hidden from minors using the site — include pseudo-lectures with titles such as “Are 1 in 5 Women Raped at College?”, “Why Did America Fight the Korean War?” and “Why Isn’t Communism as Hated as Nazism?”.

At the same time, a group of LGBTQ+ creators is suing the company for labelling their content as “shocking”, “inappropriate”, “offensive” and “sexually explicit”, despite marketing itself as a platform for open expression. They allege the company bats an eye when homophobic users attack them with “vile and obscene content”.

Both cases highlight the lack of clarity about whether YouTube is, legally, a platform — a giant public square intended for hosting all kinds of content — or a publisher — which has the editorial discretion to take things down if they are deemed inappropriate.

“People from different backgrounds, disciplines, with different goals and coming from different angles are actually coming to a similar assessment, which is that YouTube is trying to be everything to everyone, and they fundamentally can’t successfully do that.”

Herein lies the complex dilemma facing one of the world’s most popular websites.

“People from different backgrounds, disciplines, with different goals and coming from different angles are actually coming to a similar assessment, which is that YouTube is trying to be everything to everyone, and they fundamentally can’t successfully do that,” said Becca Lewis, a PhD researcher at Stanford University. “They are trying to get the business benefits of presenting themselves as a platform, while also fundamentally doing a lot of the things that media companies and trying to not have the legal responsibility of being a media company as well.”

Though YouTube is technically classified as a public forum, protected under Section 230 of the Communications Decency Act, many believe it has long been operating beyond the scope of that designation.

“[The word “platform”] actually does a lot of discursive work on behalf of these companies who want to position themselves as apolitical, as hands-off, as giving everyone equal opportunities… [but] actually the dynamics are more complex,” Lewis said.

In effect, YouTube’s powerful recommendation engine acts in an editorial capacity, curating the user experience. Algorithmic decision-making has a huge sway over the types of content, information and ideas people are exposed to.

“So it then follows that tech platforms which perform algorithmic content sorting and suggestions should be regulated like media businesses are,” argued Natasha Lomas of TechCrunch.

Lewis thinks major technology companies — like YouTube, which functions as a video platform, recommendation engine and social network — are unlike any institutions that have existed before, which therefore necessitates a new approach to regulation.

“These are fundamentally new institutions and I think that we need to update our frameworks to be able to grapple with that and right now some of our thinking is still rooted in older conceptions of media,” she said.

Powerful technology companies are facing rising pressure from politicians and policymakers around the world to ensure their content does not have a deleterious effect on people and societies.

YouTube has introduced various changes to its terms of services and community guidelines in recent years — such as tweaking algorithms, partnering with fact-checkers and featuring information panels alongside questionable content — but many argue this is not enough. 

“YouTube’s still-glacial response to addressing how its population-spanning algorithms negatively select for stuff that’s socially divisive and individually toxic may yet come back to bite it — in the form of laws that put firm limits on its powers to push people’s buttons,” Lomas wrote.

There’s also the question of localised regulation. While the US has been largely laissez-faire in its approach to technology regulation, other regions — like the European Union — have been more proactive. 

“When politicians in different countries focus on different areas of concern on platforms like YouTube, we see the threat of death by a thousand cuts.”

Chris Stokel-Walker, the author of “YouTubers: How YouTube Shook Up TV and Created a New Generation of Stars”, argues that asymmetrical regulations — where different versions of the service are used different countries — do not work for vast multinational organisations.

“When politicians in different countries focus on different areas of concern on platforms like YouTube, we see the threat of death by a thousand cuts,” he wrote in FFWD. “...Websites that cross borders and continents find it difficult to enforce piecemeal regulations depending on the whims of the ruling politicians in the countries they operate.”

Instead, what is likely to occur is a compromise the fits the lowest common denominator, attempting to appease everyone but actually not serving anyone’s best interests.

Furthermore, Stokel-Walker believes most current lawmakers fundamentally don’t understand YouTube, and therefore cannot effectively oversee it.

“I think that we’re going to have terrible regulation of YouTube for 10 or 15 years until digitally literate, younger politicians come in, realise quite what is wrong with the by-then existing regulation created by older people, and will start to roll it back a little bit more,” he said. 

In addition to affecting the type of content users are exposed to on the site, regulation has a significant impact on labour rights of creators.

“I think that’s a very real anxiety for many YouTubers, and many of them have experienced the demolishing of their livelihoods based on either a content moderation decision from YouTube or a bigger sweeping policy that ends up affecting smaller content creators,” Lewis said. 

Despite YouTube’s poor treatment of creators, there’s no real competing long-form video platform they could turn to.

“YouTube now has a massive battle with regulators, but for the past five years they’ve had a battle with creators who are not happy with their treatment,” Stokel-Walker said. “But ultimately YouTube knows that if they piss off creators, creators are not going to go anywhere because there’s no alternative, so why would they bother trying to feed them sweets?”

Cases like the suits by PragerU and the LGBTQ+ creators speak to YouTube’s immense power as an arbiter of an immense collection of online content.

YouTube is not a passive library of content, nor a neutral source of information — it is a private company that wields immense influence over the kinds of information people all over the world have access to. It is not surprising researchers and politicians are demanding greater transparency about how it works, and seeking to ways to reign in its unchecked influence.

As debates about the future of Section 230 — and the the of YouTube and other major technology companies — continue to unfold, Stokel-Walker encouraged users to recognise their own agency and practice digital media literacy.

“Learning more about how the algorithm works, how the economics behind YouTube work, and why it’s often the case people will produce extreme content because they want to be [recommended by the system] – that goes a long way to understanding why that content gets served to you, and therefore you can treat it with a little bit more healthy scepticism,” he said.


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Publisher or public forum?