Zuckerman v Zuckerberg

Of all the fascinating court cases prompted by digital technology, one of the most intriguing has been brought against Meta this month by a US academic named Ethan Zuckerman. At issue is section 230 of the Communications Decency Act, which famously gives digital platforms immunity from liability for content posted on their services; but Zuckerman is invoking s 230 in a fascinating new way. In other words, it’s Zuckerman v Zuckerberg in a case that could set a radical precedent.

As detailed by Mathew Ingram in the Columbia Journalism Review, Zuckerman is asking a court to allow users to employ third-party tools to filter and curate their news feeds. While s 230 is generally invoked to protect digital services such as Facebook, Zuckerman is arguing that it should also protect the makers and users of third-party tools. In other words, due to s 230, he argues Facebook should be prohibited from banning such tools. It’s an entirely novel argument that has legal experts stumped.

Zuckerman was inspired by UK software programmer Louis Barclay, creator of a browser extension called Unfollow Everything. The tool effectively neutralised Facebook’s algorithm, enabling users to curate their own feed with content from those friends and groups whose posts they really wanted to see. In the process, it also threatened to neutralise Facebook’s profit model.

In 2021, Barclay wrote an article detailing what happened: ‘This summer, Facebook sent me a cease-and-desist letter threatening legal action. It permanently disabled my Facebook and Instagram accounts. And it demanded that I agree to never again create tools that interact with Facebook or its other services.’ Barclay's article was titled, ‘Facebook Banned Me for Life Because I Help People Use It Less’.

In a digital world, algorithms are the code that determine which content we get to see. Generally, these algorithms are opaque, giving users little control and giving regulators, governments and societies little insight into how they operate. That's changing, however, most notably in Europe, where the Digital Services Act is now law. It includes Article 27, ‘Recommender system transparency’, which prescribes that digital services ‘shall set out in their terms and conditions, in plain and intelligible language, the main parameters used in their recommender systems, as well as any options for the recipients of the service to modify or influence those main parameters’. What’s more, Article 38 mandates that ‘very large’ services ‘provide at least one option for each of their recommender systems which is not based on profiling’. These are eminently sensible provisions.

And Australia? So far, there has been little government action on algorithms - but let’s see what the newly-announced Joint Select Committee on Social Media makes of it all.

Sacha Molitorisz, Senior Lecturer | UTS Law