Professor Olivier Sylvain was cited in “Tech Platforms, Content Creators, and Immunity,” a presentation by Federal Trade Commissioner Rohit Chopra at the ABA Antitrust Law Annual Spring Meeting on March 28th. Chopra’s remarks centered on the “blurry line between tech and media.”
So what are these companies? Are they platforms or content producers? The Communications Decency Act creates a clear distinction between platform and content. But up until now, tech companies haven’t been forced to apply that distinction to their converged business.
In fact, platform companies are clearly trying to use the legal uncertainty around convergence to their advantage. In one instance, a dominant tech platform reportedly claimed in a legal filing that, as a publisher of data, it has the discretion to withhold access to its data as a right of free speech. In making this claim, the company identified itself with traditional media saying, “A newspaper has a publisher function whether they are doing it on their website, in a printed copy or through the news alerts.” However, the firm also claimed immunity under Section 230.
Some have argued that firms that fundamentally shape user interactions are ineligible for these broad immunities. For example, noted Communications Decency Act scholar Olivier Sylvain argues that “intermediaries today do much more than passively distribute user content or facilitate user interactions. Many of them elicit, algorithmically sort, and repurpose the user content and data they collect. The most powerful services also leverage their market position to trade this information in ancillary or secondary markets.”