YouTube, by Demonetizing Russell Brand, Undermines the Rationale for Big Tech’s Legal Shield

If social media are acting like newspapers, shouldn’t they be treated like newspapers under the law?

James Manning/PA via AP
Russell Brand at London on September 16, 2023. James Manning/PA via AP

An actor and comedian, Russell Brand, is facing allegations of sexual assault. Google’s decision to demonetize his YouTube channel in the aftermath of those allegations raises questions about the presumption of innocence and undermines the legal rationale for Big Tech’s immunity from liability for creator-posted content.

Four women allege that Mr. Brand assaulted them between 2006 and 2013, with one saying she was 16 at the time. Although no criminal charges have been filed, the claims sparked outrage followed by punitive action from YouTube, the BBC, Paramount+, and others.

Mr. Brand often criticizes YouTube in favor of its rival, Rumble, where advertisers have also yanked their ads from his channel over the claims. In a statement denying the allegations, he thanked fans for “questioning the information you’ve been presented with” and lashed out at Big Tech for doing the bidding of governments in the U.K. and America.  

“We have a clear responsibility guidelines policy,” the CEO of YouTube, Nikhil Mohan, told the Hill last week of Mr. Brand, “where if creators have off-platform behavior or there’s off-platform news that could be damaging to the broader creator ecosystem, you can be suspended from our monetization program.”

This assumption of responsibility undermines Big Tech’s long-held position that they’re no more responsible for what appears on their platforms than newsstands are for the periodicals they sell, a protection written into law by the Communications Decency Act.

Section 230 of the Act, written in 1996 at the dawn of the internet, states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Justice Clarence Thomas wrote in 2020 that “publishers or speakers were subjected to a higher standard” than online platforms “because they exercised editorial control” and are “liable for transmitting illegal content.”  

A distributor acts “as a mere conduit,” Justice Thomas said. They pass along “far more content than they could be expected to review.” Tech companies, agreeing that they’re shops for the work of others, welcomed the immunity.

In May, the high court voted 9-0 in Twitter, Inc. v. Taamneh that the social media company now known as X was not liable for ISIS content that aided an attack on a Turkish nightclub. Citing that decision, the court declined to rule on Gonzalez v. Google, letting stand a ruling that upheld Section 230’s protections.

In briefings filed for Gonzalez, Google argued that “YouTube does not produce its own reviews of books or videos or tell users that a given video is ‘terrific,’” and said the court “should not lightly adopt a reading of Section 230 that would threaten the basic organizational decisions of the modern internet.” 

Senator Hawley, Republican of Missouri, writing on behalf of the plaintiffs in Gonzalez, said that Section 230 had been used to “shield the nation’s largest and most powerful technology corporations from any legal consequences” and “allows platforms to escape any real accountability for their decision-making.”

Justice Thomas raised his own concerns about the law, asking whether “this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms,” noting that “laws governing illegal content” make a distinction between “publishers or speakers” and “distributors.”

In demonetizing Mr. Brand, Google has demonstrated that it can and does act against content creators it finds objectionable even away from the platform. That ISIS committed a long list of documented atrocities, while Mr. Brand has only been accused by anonymous claimants, demonstrates that YouTube can and does assume the role of a publisher when it wishes.

Whether Mr. Brand is ever charged or convicted, he has already been sentenced to a financial penalty by YouTube. In doing so, the company has appeased those in the Anglo-American governments that the actor criticizes, but undermined the arguments that gave birth to Section 230 a generation ago.  

Big Tech companies have amassed unprecedented power to punish individuals they deem objectionable. In stripping Mr. Brand of income, YouTube may have pleased the commentator’s foes, but it’s also proven that it is not a mere digital newsstand and strengthened the argument that Section 230 is overdue for a rewrite.

The New York Sun

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