So, what is the legal difference between “publishers” and “distributors”?
One is always a “publisher” of their own words, the stuff they write and say themselves. That is completely uncontroversial. The controversy and confusion arise around republication liability, the idea that you are legally a “publisher” of all statements of others that you republish even if you accurately quote the original speaker and attribute the statement to them. So, if you accurately and directly quote someone in an article you have written, and the quoted statements defame someone, you can be liable for defamation for republishing those statements. This applies to any content in your publication that you did not write yourself, like letters to the editor, advertisements, outside editorial, wire service stories, etc. Legally, you are responsible for all of these statements as if they were your own creations.
This legal concept of republication liability is an old concept inherited from English common law. But it appears that up until 1824, accurate attribution was a full defense.
A subcategory of these “publishers” are “distributors.” Since at least 1837, republication liability has extended also to mere distributors of speech—the 1837 case Day v. Bream dealt with a courier who had delivered a box of libelous handbills—if it could be proved that they knew or should have known about the illegal or tortious content. This “distributor” liability was widely applied to newsstands, booksellers, and libraries. The American version of this knowledge-based “distributor” liability is commonly associated with the US Supreme Court’s 1959 decision in Smith v. California, which found that a bookseller could not be convicted of peddling obscene material unless it could be proven that the bookseller knew of the obscene contents of the book. Outside of criminal law, US courts imposed liability on distributors who simply should have known that they were distributing actionable content.
So “distributor liability” applied to those like booksellers, newsstands, and couriers who merely served as fairly passive conduits for others’ speech, and “publisher liability” applied to those who engaged with the other person’s speech in some way, whether by editing it, modifying it, affirmatively endorsing it, or including it as part of larger original reporting. For the former, group, the passive distributors, there could be no liability unless they knew, or should have known, of the libelous material. For the latter group, the publishers, they were treated the same as the original speakers they quoted.
Because one was treated a bit better if they were a passive distributor, the law actually disincentivized editing, curation, or reviewing content for any reason.
One of the primary purposes of Section 230 was to remove this disincentive and encourage online intermediaries to actively curate and edit their sites without being so penalized. Former Rep. Chris Cox, one of the co-authors of Section 230, recalls finding it “surpassingly stupid” that before Section 230, courts effectively disincentivized platforms from engaging in any speech moderation. And Congress recognized that even the notice-based liability that attached to distributors created the prospect of the “heckler’s veto,” whereby one who wants the speech censored tells the distributor about it and the distributor removes the speech without devoting any resources to investigating whether the objection had any merit.
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This article is a free speech website from the US. Basically social media is legally exempted from responsibility wrt what is posted by users. And all the big social media companies are US based.