A team of experts working for the Israeli Ministry of Communications is considering new laws that would hold social media companies liable for incitement posted by users on their platforms. Though newspapers and television networks have long been liable for such content, this is a potentially dramatic development for social media giants.
The discussion comes on the backdrop of a Human Rights Watch Report that claimed Israel and Facebook have been colluding to “silence” Palestinian voices on human rights issues. It also immediately follows a paradigm-shattering 60 Minutes special that featured Facebook “whistleblower” Frances Haugen, who charged that Facebook’s leadership “chooses profits over safety.”
Indeed, this is not just about the Jewish state because whatever course the Israeli commission charts will have a significant impact on the entire Western world as the decision stands to alter the global social media landscape.
Silencing Palestinian Voices?
The Human Rights Watch report criticized Facebook’s removal of “hundreds” of posts by Palestinians but failed to provide an accurate overview of the content that was taken down.
For example, one post not only encouraged Palestinians to stab Jews to death but also offered specific instructions on how to go about doing so, including anatomical charts identifying the most vulnerable body parts.
Another post encouraged people to brutally butcher Jews, by graphically portraying a gory scene as an act of religious heroism.
Huge numbers of similar posts were the driving force behind a wave of anti-Jewish violence in 2015-2016, which came to be known at the “Knife Intifada.” Palestinians, typically armed with only a knife, along with knowhow and motivation derived from social media, murdered 38 Israelis (among them 31 civilians) and injured 558.
Just last May, massive online incitement induced Palestinians to mount violent riots in Israel. This was used by Hamas as a pretext to initiate a full-blown conflict in which US-designated terror groups launched nearly 4,500 rockets towards Israel, with hundreds of them misfiring and, as a result, killing Gazans as well.
None of these critical details made it into the Human Rights Watch report.
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What Does the Law Say?
Incitement has never been considered “free speech,” not in Israel, not in the United States, not in any modern liberal democracy.
The US case Brandenburg v. Ohio sets out three criteria that speech must meet in order to legally be classified as “incitement.”
- The speaker must directly advocate that a crime be perpetrated;
- The crime must constitute an “imminent” threat; and
- It must be “probable” that the crime be committed by someone.
In short, it is not enough to offend or disagree with an individual. It is not even enough to make vague threats. Rather, incitement is speech that has a high likelihood of causing someone to almost immediately commit a crime. This is a high legal standard and intentionally so, as it is designed to protect free speech while also balancing the need to uphold public safety.
Section 230
Incitement laws apply to newspapers, television and all manner of conventional media, which raises the question: Why are social media companies not already being held responsible for what is written on their platforms?
The answer is because of a law known as Section 230 of the Telecommunications Act of 1996. Passed when widespread use of the Internet was still in its early stages, this law was meant to promote growth by insulating internet service providers from liability for content published on their sites by third parties.
In other words, your cable company, cellphone provider and even your local coffee shop (with its free WiFi) cannot be sued because of what their customers say or write online.
However, Section 230 was passed years before the advent of social media platforms, which offer the owner significantly more control over and involvement in content creation than an infrastructure provider. Nevertheless, courts applied Section 230 to various websites even as they became increasingly interactive.
In one notorious case, a site called Backpage.com was protected from liability despite allowing its users to engage in sex trafficking. The case prompted the passage of new laws to deal specifically with the problem of online sex trafficking, but left Section 230 essentially intact. The trend of broadly applying Section 230 has helped to create our current reality: that is, one in which current social media titans enjoy the same protections as the early internet access providers, despite being much more engaged in user content compared to a typical cable or cell phone company.
Today, there is significant debate over whether Section 230 should be modified or even repealed in an age when social media companies monetize user-generated content.
The Whistleblower
Against this backdrop, the television program 60 Minutes last week aired a special featuring Facebook “whistleblower” Frances Haugen, who contended that Facebook “chooses profits over safety.” According to Haugen’s logic, if incitement brings Facebook more traffic and thus more profits, the company will usually tend to allow it, even if it leads to murder.
In a vacuum, this is an entirely rational (if somewhat distasteful) decision for a corporation that answers to markets and shareholders — which is precisely why countries have laws. It is the role of government to balance the incentives of capitalism against our social responsibility to live together within an environment that is reasonably safe.
By the same logic, a company motivated by profits will work diligently to prevent incitement if its managers and shareholders know that the business can be held financially (and perhaps even criminally) liable for the results.
Israel Leading the World
We frequently see Israel taking steps just slightly ahead of the rest of the world. The tiny country pioneered much of the modern science underpinning counterterrorism; has developed an enormous hi-tech sector; and, most recently, executed a nationwide rollout of the coronavirus vaccine well ahead of most, if not all, other states worldwide.
In this way, Israel is at times a kind of “laboratory” that indicates what might be coming next: the rest of the globe’s “peek into the future.” As a modern liberal democracy, with a diverse population and strong free speech laws, Israel is a model for progress that can be examined and emulated by other nations, including the United States.
Incitement on social media, while affecting many countries, has had a disproportionate negative impact on Israel by directly causing injuries and deaths in the past few years alone. Israel’s discussions about holding social media companies accountable will almost certainly impact the American debate over Section 230 as well as similar ones in countries around the world.
If Israel implements its legal changes correctly and manages to save lives without curbing free speech or business growth, then it may be looked upon as the standard-bearer for a safer, better world.
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