Jeff Bewkes on liability and social media platforms

Thanks Michael, great to be here with you.

Yeah, and I knew those two guys. They were actually there when we premiered the Band of Brothers, and we did it the first day in Normandy at the site of the D-Day landings. Those guys were sitting there, looking at the screening. That was when one of them had his leg taken by Wild Bill. I was quite concerned that we were going to do this accurately. I remember when the lights came up, they looked at each other and said, 'That's just how it happened, Bill, isn't that just how it happened?' It was the best thing. I have to say I cried, but it was the best time.

Well, there's a lot of attention. First, what is the issue? We're all trying to figure out what to do about misinformation, particularly disinformation, defamation, and falsehoods circulating, whether on television or the internet. It seems there's a lot going on on internet services. The first thing is, I don't think the solution to improving the accuracy of our dialogue lies in vilifying the social media companies. They've done a lot of good. We ought to recognize the legitimate contribution they make to connecting people, bringing dialogue, and creating innovation. They've created a lot of value for shareholders, they're good employers, so we ought to keep and preserve that. But like any media, like the TV news channels that rose up before that era, there are also potential harms and a certain responsibility that goes with putting out all these messages. I don't think the answer lies in regulation; I think it's really deregulation. I would look at it more as a graduation present for these internet and social media companies. What I mean by that is, if CNN or Fox chooses to put on a broadcast out to millions of people a guest who is going to spew false and defamatory information, and if we choose to do that and we're making money off of disseminating it to millions of people, then yes, that person can be held liable for false defamation, and CNN or Fox putting it on can be held liable too. That's evolved over many years. It does not conflict with free speech. But if that person does the same exact thing on a social media platform, yes, the person can be held responsible, but the social media platform that amplifies it to millions cannot be held responsible; they have a liability shield installed by Congress back in 1996 called Section 230. The thinking there—and I think it needs a little adjustment—was quite understandable that at the dawn of the internet, with these new ISPs, Congress wanted to encourage the construction of the internet. They didn't want the companies building those wires to be responsible for what individuals said to each other over the internet, similar to the telephone company not being responsible if you defame someone on the phone system. But the difference is, and nobody anticipated social media or what would evolve, if those companies say, 'We're just putting up a platform or a bulletin board; if somebody wants to post something and another wants to read it, that's not our responsibility,' I think they're right about that. But if they choose to intervene, pull that post up, and send it out to millions of people using their massive data mining to figure out who to send it to, then they're making an active choice to publish it. Then they ought to share some responsibility, in the same way that if CNN puts a guest on and sends it out to everybody, you have a duty to figure out if what they're saying is false and defamatory. There's been a hundred years of precedent to try to figure out the right level of responsibility a given newspaper, TV network, or in this case social network ought to have, given the reality and difference of their platform versus the old news broadcast platforms. A recent example is Fox and Newsmax broadcasting some people that put out false and defamatory claims against voting machine companies Dominion and Smartmatic. Those companies, feeling their reputation and business were harmed, filed suits for financial damage against both the individuals and those news outlets. We don't know what the facts will be and what the judgment will be, but they couldn't make the same filing against a Facebook or a YouTube if they heard the same thing. Given the trillions of dollars those companies are worth, they can invest money just like CNN or Fox does to try to do some fact-checking and editorial standards when they are disseminating messages deliberately. This is not my idea; I think Frances Haugen put it forward in her testimony, and another man named Roddy, Ronnie Lindsay I believe, wrote an editorial about it. I don't want to put false words in their mouths, but a number of people have put this forward. It doesn't focus on any particular type of content or target audience; it just generally says if you're going to amplify something, you ought to take some responsibility for it.

Yeah, I would ask you, maybe you could decide what's the difference between you personally taking what some guest says on your show and deciding to send it out across the country if you had millions of users, or let's say you program an algorithm to do it for you. Aren't both of those things active decisions to promote a certain speech content? And don't you have some responsibility if that's what you're doing to find out before you do that whether it's false and defamatory?

Right, they've created a lot of value, so again, we ought to repeat this is not against them. They certainly have enough money to invest in some amount of policing what they're doing. People often jump, when this gets distorted, where critics say you're trying to regulate speech, you're trying to infringe on my free speech. No, quite the opposite. This is not regulation, this is not any part of government action to punish, penalize, and do anything to anybody's speech. This is simply removing a regulation the government put in that selectively gave liability to one kind of company, a social media company, at least under the current. That same shield of liability doesn't exist at CNN or at Smirkandish Media.

Yes. And I think that just as we, over the last hundred years, evolved reasonable standards for what was originally a newspaper company, then a radio company, then a television network, then cable news networks, over all those innovations we evolved some level of a reasonable context to decide how much responsibility should each of those mass media platforms have for defamation. I just think we ought to let that old American ingenuity act again in this new and even more powerful and more profitable industry that is the internet and social media industry. If CNN and NBC News can invest money, as we have over the last decades, to make sure our content is responsible, that doesn't mean we don't go ahead and air controversial content; it's just that we bear responsibility if we do it in a recklessly defamatory way.

Well, I haven't thought about it, but I think you're right. We'd all like to know if it's Chucky saying all this crazy stuff, and if it's Vladimir, we'd like to know that too, wouldn't we? Yes. Yeah, I just don't know if any amount of artificial intelligence or any number of employees for a Facebook is going to be able to police all of this the way I think would be necessary.

Well, I'm a little concerned that I may not know all of the unanticipated consequences of what this would do. I don't want to chill the exchange of ideas in the country. So I'm inviting everybody, by saying this, to go ahead and shoot at it, but let's get the conversation going. I have one more thought: there are a number of bills in Congress that you could mistake for being in this same direction. Instead of just saying 'we'd like to remove a certain part of the liability shield so that companies with the ability can have some responsibility for their content, not to the government but to people who claim they're harmed by what they're doing,' there are other bills that focus on this type of content or that type of content, or if the content harms this protected audience or that disadvantaged audience. I don't think those are the right approaches because those would entail a selective removal of a liability shield, which would put a burden on one kind of speech versus another kind of speech. While that's not a government infringing on your right to speak, there is a certain amount of precedent from our courts, constitutional precedent, that says even though it's not the government which is restrained by the First Amendment and can't tell you what to put on or take off, if the government through the legislative branch acts to selectively burden this speech but not that speech, that itself may bring First Amendment challenges. I think it's the wrong way to go because you have people on the right side of the aisle saying the social companies are suppressing conservative speech, and people on the other side saying we don't like speech that is in this category or hurts these people. I don't think either of those should factor into it. I think we simply ought to make a more level playing field between a CNN and a Wall Street Journal with a Facebook and a YouTube.

Well, yeah. But you know, there's a book coming out about HBO in a month by James Andrew Miller. It's the history of HBO. It's got everybody's voice, so it won't just be my opinion; it'll be everybody else's. I think he interviewed 700 people. I haven't read it, but I think it's going to be a very lively look at how did The Sopranos get made, how did Larry Sanders get made. Frankly, many of our biggest breakthroughs were mistakes, and some of our greatest decisions failed. So it'll give you the real live circus that went on to make HBO.

Yeah, and actually the guy who did that is Michael Fuchs. That really put us on the map. It came out of a real brilliant sense of comedy that Michael had. He was really the founder of HBO's original program. He did not just Sanders but many other of the great stand-ups that you remember. You probably forgot they were all on HBO. They were put there by Michael Fuchs, who was kind of our first leader on breaking through.