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Is Facebook a Public Forum, Publisher, or Just a Platform?

By George Khoury, Esq. | Last updated on

Social media has gotten huge. Today, the media part of it is bigger than ever, too. And while regulations are starting to pop up requiring advertisers to disclose when content has been paid-for or promoted, courts are being asked more and more often to decide what space these online platforms occupy: Public forum, publisher, or simply online platform.

When it comes to Facebook, the question of what exactly the website does can be tricky to answer, particularly after the recent data mining scandal. Though the company has explicitly testified at Congress that it is just a platform for users to post content, a recent story explains that the company has also claimed to be a publisher in a California court.

So ... What Are You Facebook?

Given the fact that Facebook provides a public space for government officials, departments, and agencies, to engage in public outreach by creating pages, courts have found that a limited public forum exists, where First Amendment protections apply to these types of Facebook pages. Fortunately, for our personal pages, and business pages, the First Amendment doesn't apply, at least until you're a government official. If you can recall, recently, the court told President Trump that his blocking people on Twitter violates the First Amendment.

However, courts have also routinely upheld Facebook and other platforms' rights, as well as the rights of individual and business users, to remove content that violates the terms of service, while also not holding Facebook or other platforms liable for the content users post.

Caught in a Loophole?

In addition to providing the platform, Facebook also curates, and even has a hand in making some of the content that users see, which, arguably, makes it less platform and more media.

The line between publisher and platform for Facebook, and other social media companies, is getting blurrier and blurrier as nefarious forces seek to manipulate social media. For instance, after the last presidential election, Facebook was forced to confront its role in spreading fake news, and Twitter had to deal with the "bot" problem. Basically, social media becomes less of a platform as community moderation fails and the companies have to step in to do more moderating and curating of content.

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