26 February 2024
The US Supreme Court is hearing arguments today on two extremely important cases for social media, essentially determining whether platforms have the right to limit what users can post.
🔹 The two cases, Moody v. NetChoice, No. 22-277, and NetChoice v. Paxton, No. 22-555, centre on whether social media platforms are permitted under the US Constitution to make editorial decisions about their content, such as removing posts or banning users.
🔹 To oversimplify the cases, state laws in Florida and Texas have restricted platforms from removing content or barring users, deeming these acts of censorship. The laws are now the subject of two linked cases being heard before the Supreme Court today.
🔹 Although the decision is not due until June, the Supreme Court's judgment could fundamentally alter the business models and online safety stance of social media platforms.
🔹 On one hand, denying platforms the right to remove users or specific content could amplify online harms and disinformation; on the other, allowing social media companies complete control over their platforms’ content could give them significant powers of censorship.
🔹 The key issue, according to reports, is whether social media platforms act as “newspapers,” with constitutional protection for editorial decisions, or whether they are “common carriers” like telecoms companies, required to transmit all messages sent using their platform without interference.
From a European perspective, the problem of how to define and regulate social media content has been considered from different perspectives over many years, most recently with the EU’s Digital Services Act (DSA) and the UK’s Online Safety Act.
Questions around whether “intermediaries” should have legal protection under the e-Commerce Directive for content transmitted without their direct knowledge, and how they fit within the EU Telecoms Framework, have been debated for a long time.
From a data protection perspective, the level of editorial involvement by social media companies gives rise to important questions on their roles as data controllers for the content they hold. How, for example, can they ensure content is up-to-date or accurate? Do platforms’ editorial decisions qualify as journalism? Equally, do users benefit from the “household exemption” when using social media, such that individuals are not required to implement GDPR-compliance policies for information posted on social media?
Although the US cases are obviously not binding on other regions, they could have very significant consequences for how social media platforms operate, and how big tech can adapt their business models to an increasingly complex regulatory environment.
We could even find ourselves in circumstances where mandatory online safety measures in Europe are seen as first amendment violations in the US. The judgment in June will make really interesting reading….