Should Safe Harbors Apply To TV Advertising As Well?

from the seems-reasonable dept

Tue, Jul 7th 2009 3:08am — Mike Masnick

Paul Alan Levy alerts us to an interesting situation (and question raised) involving General Motors appearing to suppress speech that it did not like, and wonders if Section 230 safe harbors should apply in broader media, as well. The case involves a consumer group that was concerned that the bankruptcy restructuring that General Motors is going through would protect it from certain liability claims from owners of cars with defects. So, they took their case to the public by creating a TV commercial and buying airtime via Comcast. GM, rather than refute the content of the ad, simply told Comcast that the ad contained inaccuracies, so Comcast pulled down the ad. However, as Levy notes, this allows GM to suppress the ad at the moment when it would be most effective, without ever needing to prove the inaccuracies (or respond to the "accuracies" of the ad).

In the last few months, we've seen some claim that Section 230 safe harbors should be scaled back because it's somehow "unfair" to treat online different than offline. I've taken issue with that line of reasoning, because in most cases the situations are quite different. The purpose of the safe harbors is to prevent the platform for being blamed for the actions of a user. But in a traditional newspaper, we're talking about content that has been approved and put in place by an editor.

Levy takes that point into account, but suggests why expanding (rather than limiting) Section 230 might make sense here:

There are, of course, significant differences between the burdens that a cable company like Comcast faces with respect to assessing ads and the situation facing an Internet host (such as Comcast, wearing a different hat) that enjoys the protection of Section 230. There are only so many hours on which ads can be shown on cable; and when Comcast receives a proposed ad, it must take the step of placing those advertisements amidst its programming. Thus, Comcast is in a position to perform pre-broadcast review of the text. This is very unlike the situation facing the provide of an online interactive computer service, which allows thousand or even millions of users to place content online with not opportunity for review. And equally important, Comcast earns significant revenues from each broadcast of a single ad, and hence is able to offset its profits from those broadcasts against the cost of review. This is unlike the situation for most statements posted online, with respect to which the host earns tiny sums, at best, either through a modest monthly fee for web server space, or through advertising on the web page.

But the potential impact on speech is the same -- the sponsor of a message on an important issue of public policy sees its message suppressed merely by claims of inaccuracy. Why should the broadcaster face the prospect of secondary liability for carrying the ad, and why shouldn't the opponent of the speech be put to the burden of responding in the marketplace of ideas and, if it really wants to suppress the speech, why shouldn't it have to go to court and persuade a judge that the speech is both false and defamatory before it gets the relief of suppressing the speech?

This makes a rather compelling point. While I still argue the entire concept of safe harbors like this shouldn't be needed if common sense worked, since common sense isn't so common these days, it does make sense to include safe harbors for situations like this where the company that acts as the "platform" has no reasonable expectation to thoroughly research the content first.

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Filed Under: advertising, safe harbors, tv
Companies: gm

14 Comments

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Rob, 7 Jul 2009 @ 4:35am

"A new car built by my company leaves somewhere traveling at 60 mph. The rear differential locks up. The car crashes and burns with everyone trapped inside. Now, should we initiate a recall? Take the number of vehicles in the field, A, multiply by the probable rate of failure, B, multiply by the average out-of-court settlement, C. A times B times C equals X. If X is less than the cost of a recall, we don't do one."
"Are there a lot of these kinds of accidents?"
"You wouldn't believe."
"Which car company do you work for?"
"A major one."
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- ABC, 7 Jul 2009 @ 5:13am
  
  Re:
  If I were related to the deceased family, could I put the burntout hulk upon a trailer with a sign which read "made by company ABC
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- ABC is less than Recall, 7 Jul 2009 @ 5:14am
  
  Re:
  If I were related to the deceased family, could I put the burntout hulk upon a trailer with a sign which read "made by company ABC is less than Recall and then drive all around the country ?
  Would they claim it contained inaccuracies ?
  [ link to this | view in chronology ]
John Doe, 7 Jul 2009 @ 4:45am

I agree with Levy...
I have to say, I agree with Levy. Anymore, all anyone has to do to suppress something they don't like is file a complaint with the carrier bet that online or offline. How is Comcast to know who is right, GM or the consumer group? The fight should leave Comcast out of it.
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Thomas, 7 Jul 2009 @ 5:22am

And GM wonders
why people don't want to buy their cars. It's simple: GM hates customers and can't build reliable cars.

My brother bought a new Buick last month via a great sale. The first week he had the car it broke down and spent two days in the shop getting fixed. Then he found out that the acc plug (used to power an iPod) doesn't work and the dealer says they have to take a seat out to replace it. My 10 year old Toyota Corolla has never broken down.
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Chronno S. Trigger (profile), 7 Jul 2009 @ 5:57am

common sense or lack there of
I could see the cable company getting into trouble if they show nudity or strong language (yeah, blood and guts are fine though), but how can anyone expect a cable company to fact check every single commercial? And if they did, how many commercials would be left? How many of GM's?
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- Ryan, 7 Jul 2009 @ 8:31am
  
  Re: common sense or lack there of
  How is it even possible to fact check many ads? If something bad is claimed about GM that may not be public knowledge, are we just assuming GM will admit it outright if its true?
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Comboman, 7 Jul 2009 @ 6:55am

No obligation
Comcast is a private company and under no obligation to show anyone's ad, accurate or not (just look at the trouble Adbusters has buying air time to advertise "Buy Nothing Day"). In the old days, GM wouldn't need to say anything about inaccuracies, they would just tell Comcast to yank the commercial or they would not get any of GM's advertising. The fact that they need the extra leverage of implying legal trouble for Comcast is indicative of how weak GM has become, not a sign of problems with the law. "Safe Harbors" laws should not trump "Truth in Advertising" laws.
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- michael Vilain, 7 Jul 2009 @ 7:42am
  
  Re: No obligation
  With various Attorney's Generals and the FTC going after the creator of ENZYTE (penis enlarging pills), that hasn't stopped any cable vendor from showing those ads. Late-night advertising is filled with them. Comcast or TBS or whomever takes the money and runs to the bank.
  
  The FTC went after the original commercial (remember Bob?) because their guarantee required a MD to write on letterhead that the stuff didn't help or increase the purchaser's size. What guy is going to do that?
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JackSombra (profile), 7 Jul 2009 @ 7:07am

Sorry but this had nothing to do with safe harbour protections or the lack of them.

Case to point, just look how much inaccurate, misleading or just plain false advertisements/documentaries/news reports there on TV at any given moment, has the lack of safe harbour protectiosn stopped this?

This was quite simply a case of two groups,
First group has a limited advertising budget, probably will only run the one series of ad’s and then Comcast would never hear from them again
Second group is one of the largest car manufactures in the country, advertises to the tune of tens if not hundreds of millions per year, year in year out

Second group did not like what first group said about them, Comcast just followed the money

Even if they had been safe harbour protections Comcast would have done the exact same thing
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- Chronno S. Trigger (profile), 7 Jul 2009 @ 7:42am
  
  Re:
  First, I'd like to guess that GM doesn't pay Comcast diddly squat. The local dealers pay Comcast and GM pays the big channels directly, no cable company involved. This is just a guess, I don't actually know.
  
  Second, I see where you're coming from with the small, onetime buyer vs. the big, ongoing buyer, but look at where this can end up. Imagine if GM had a problem with, say, a GE commercial. Both big names, both large, ongoing buyers. This could end up in a lawsuit with Comcast in the middle. They pulled consumer groups', why not GE's. What about Microsoft having a problem with Google's Chrome advertisements?
  
  Third, I also see what you're saying with Comcast is just following the money, but that's a problem because there are just so few TV providers available. In Pittsburgh it's ether Comcast or, if you don't have buildings or trees blocking the path, Sat and that's considered a joke here. It seems almost impossible to even setup a different TV provider. It took a year for Verizon to convince the city to let them provide TV threw the already installed lines. Imagine the hell one would have to go threw if another cable company wanted to run more lines.
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Overcast (profile), 7 Jul 2009 @ 8:42am

Well - on that note..

"GM, rather than refute the content of the ad, simply told Comcast that the ad contained inaccuracies, so Comcast pulled down the ad."

Then when they claim they "make the best cars" - that could also be considered an inaccuracy - as it's purely subjective, right?

It's not a FACT - it's an opinion.
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mlgreen8753, 16 Jul 2009 @ 2:50pm

Make it fair!
I believe it should just to keep it fair for everyone. If they are regulating content then it needs to be all across the board. Even video content submitted to sites like YouTube and Adwido should be regulated.
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mlgreen8753, 16 Jul 2009 @ 2:50pm

Make it fair!
I believe it should just to keep it fair for everyone. If they are regulating content then it needs to be all across the board. Even video content submitted to sites like YouTube and Adwido should be regulated.
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