Explainer: The Whole Spotify / Joe Rogan Thing Has Absolutely Nothing To Do With Section 230

from the so-just-stop-it dept

I really wasn't going to write anything about the latest Spotify/Joe Rogan/Neil Young thing. We've posted older case studies about content moderation questions regarding Rogan and Spotify and we should have an upcoming guest post exploring one angle of the Rogan/Young debate that is being worked on.

However, because it's now come up a few times, I did want to address one point and do a little explainer post: Spotify's decisions about Rogan (and Young and others) has absolutely nothing to do with Section 230. At all.

Now, we can blame Spotify a bit for people thinking it does, because (for reasons I do not understand, and for which both its lawyers and its PR people should be replaced), Spotify has tried to make this about "content moderation." Hours after Spotify's internal "content policy" leaked, the company put out a blog post officially releasing the policy... that had already leaked.

And, when you're talking about "content policy" it feels like the same old debates we've had about content moderation and trust and safety and "user generated content" websites and whatnot. But the decision to keep Rogan on the platform has nothing, whatsoever, to do with Section 230. The only issue for Section 230 here is if Rogan did something that created an underlying cause of action -- such as defamation -- then, there might be a Section 230 issue if the defamed individual chose to sue Spotify. Spotify could then use Section 230 to get dismissed from the lawsuit, though the plaintiff could still sue Rogan. (If you want an analogous case, years back, AOL was sued over something Matt Drudge wrote -- after AOL had licensed the Drudge Report in order to distribute it to AOL users -- and the court said that Section 230 protected AOL from a lawsuit -- thought not Drudge himself).

The thing is, no one (that I can find at least) is alleging any actual underlying cause of action against Rogan here. They're just arguing that somehow Section 230 is to blame for Spotify's decision to keep Rogan on their platform.

But the question of Spotify's decision to keep Rogan or not has nothing to do with Section 230 at all. Spotify has every right to decide whether or not to keep Rogan in the same manner that a book publisher gets to decide whether or not they'll publish a book by someone. And that right is protected by the 1st Amendment. If someone sued Spotify for "hosting Joe Rogan," Spotify would win easily, not using Section 230, but for failure to state any actual claim, backed up by the 1st Amendment right of Spotify to work with whatever content providers they want (and not work with ones they don't).

Unfortunately, Spotify's founder Daniel Ek made matters even dumber yesterday by pulling out the mythical and entirely non-existent "platform/publisher" divide:

At the employee town hall, both Ek and chief content and advertising business officer Dawn Ostroff “repeatedly used the phrase ‘if we were a publisher,’ very strongly implying we are not a publisher, so we don’t have editorial responsibility” for Rogan’s show, said a second Spotify employee who listened to the remarks — and who, like some Spotify employees listening, found the executives’ position “a dubious assertion at best.”

In a chat linked to the town hall livestream, “A large portion of the angry comments were about how Spotify’s exclusive with Rogan means it’s more than just a regular platform,” said one employee.

That LA Times article, by Matt Pearce and Wendy Lee (who are good reporters and should know better), then confuses things as well, implying that Section 230 depends on whether or not a website acts as a "publisher or a platform." It does not. Section 230 applies equally to all "interactive computer services" with regards to content provided by "another information content provider." There is no distinction between "platform" and "publisher." The only issue is if Spotify helps create the content -- in whole or in part -- and courts have determined that merely paying for it doesn't matter here. It's whether or not the company actively had a role in making the actual content (and, more specifically, in contributing to the law-violating nature of any content). But that's not the case here.

Still, with all this talk of "platforms" and "publishers" and "content policies" and content moderation -- people seem very very quick to want to somehow blame Section 230. Superstar tech reporter Kara Swisher went on Anderson Cooper's CNN show and argued that Spotify doesn't deserve Section 230, which is weird, again, because Section 230 isn't implicated at all by Spotify's decision.

Then, the folks at Sleeping Giants, an activism group that I think does really great work communicating with advertisers about where their ad dollars are going, also tweeted about the LA Times article suggesting that it was another reason why Section 230 was "too broad." After I (and many others) tweeted at them that this wasn't a 230 issue at all, they quickly apologized and removed the tweet:

But since so many smart people are getting this confused, I wanted to try to do my best to make it clear why this is not a 230 issue.

And the simplest way to do so is this: How would this situation play out any differently if Section 230 didn't exist? If it didn't exist then... Spotify still would be making decisions about whether or not to cut a deal with Rogan. Spotify, just like a publishing company, a newspaper, a TV cable news channel, would have a 1st amendment editorial right to determine who to allow on its platform and who not to. 230 doesn't create a right to editorial discretion (both up and down). That already exists thanks to the 1st Amendment.

Indeed, if you're thinking that Spotify might somehow be liable if someone gets hurt because they listened to someone spreading stupid advice on Rogan's podcast, that's not going to fly -- but, again, because of the 1st Amendment, not Section 230. As Section 230/1st Amendment expert Prof. Jeff Kosseff explained in this great thread, book publishers have (multiple times!) been found to be not liable for dangerous information found in the books they publish.

In both of the cases he describes, people were injured, tried to hold the book publisher responsible for telling them to do something dangerous, and the courts said the 1st Amendment doesn't allow that.

So then, the only way 230 comes into play here is in the specific case of if Rogan broke the law with his speech on the podcast (with defamation being the most obvious possibility). As far as I can tell, Rogan has never been sued for defamation (though he has threatened to sue CNN for defamation, but that's another dumb story for another day). So, the risk here seems minimal. Some people have suggested suing for "medical misinformation" but anything Rogan says along those lines is almost certainly protected 1st Amendment speech as well. But, if Rogan somehow said something that opened him up to a civil suit and the plaintiff also sued Spotify... Section 230 would... help Spotify... a tiny bit? It would likely help Spotify get the case tossed out marginally earlier in the process. But even if we had no 230, based on how the law was before Section 230 (and the examples like those shown by Jeff Kosseff), the courts would likely say Spotify could only be liable if it had knowledge of the illegal nature of the content, which Spotify could easily show it did not -- since Rogan produces the show himself without Spotify.

So in the end, 230 provides Spotify a tiny kind of benefit here -- the same it provides to all websites that host 3rd party content. But that benefit has nothing to do with the decision of whether to keep Rogan or not. It would only apply to the mostly unlikely situation of someone suing, and even then the benefit would be something akin to "getting a case dismissed for $50k instead of $100k, because the case would still be dismissed. Just with slightly less lawyer time.

We can have debates about Joe Rogan. We can have debates about Spotify. We can have debates about Section 230. All may be worth discussing. But the argument that Spotify keeping Rogan has anything to do with Section 230... is just wrong. The 1st Amendment lets Spotify host Rogan's podcast, just like it lets any publisher publish someone's book. Taking it away won't change the calculus for Spotify. It won't make Spotify any more likely to remove Rogan.

So, go ahead and have those other debates, but there's no sense in trying to claim it's all one debate.

Filed Under: content moderation, daniel ek, intermediary liability, joe rogan, liability, licensing, podcasts, section 230
Companies: spotify