16:34 PM

To be or not to be a media company? There is a lot at stake...

And by Richard Koman for Silicon Valley Watcher.

Yesterday my colleague Richard Koman wrote that a federal judge ruled that Google, Yahoo, Time Warner and Microsoft could refuse advertising.

 Search engines are constitutionally similar to newspapers, the decision says and they have the same limited First Amendment rights as newspapers to accept or reject advertising.

Link to:   Judge Google is a media company, legally speaking

Interesting. Google says it is not a media company yet it invokes legal protections granted to newspapers.

Here is Rachel Rosmarin from Forbes:

Is Google a media company? Its officials often skirt around the concept, for fear of offending potential partners or competitors.

Yet under the Communications Decency Act (CDA) Google and other search engine companies are not considered media companies and are protected from legal liabilities arising from what they publish--newspapers have no such shielding.

Could this recent legal ruling lead to the loss of CDA protection for Google and similar companies?

Richard commented:

That's interesting. This dismissal decision actually has it both ways. Google is given the free speech protections of a newspaper and the court cites Miami Herald (newspapers can't be required to print candidate responses to editorials), Daily Nebraskan (decision not to print gay ads protected as free speech), Associates & Aldrich Co (newspaper can't be  compelled to print ad as is; right to edit).

At the same time, Google is an online service provider under CDA. So they are protected from the liability that newspapers have for the editorial decisions they make.

That's a sweet spot to be in. I think the thing to realize is that the First Amendment right not to speak is not a press freedom but a commercial freedom. The cases are newspaper cases because newspapers are traditional ad publishers. As an ad-running business, GOOG has the right not to run ads.

But they don't exercise any other editorial discretion, so they are very much an online provider. In fact, since all they do is aggregate others' content, they really have no editorial liability.

You could argue they should have a responsibility for the content they carry (ie Google News), but that's where CDA steps in to say: No liability.

But can Google have its cake and eat it?

Google News is produced by human editorial decisions--they are merely expressed in different ways, through the design of the Google News algorithm. Otherwise Google News would pick content at random and publish it, which it doesn't.

An ISP can argue that it is just a pipe, a bit carrier, and therefore has the protection of the CDA. However, the Telco/Cable ISPs want to climb up the value chain and add their own services, content, and advertising. Will they run into similar legal issues?

And If there is no net neutrality, and they are choosing which services/content to carry, could such editorial activities affect their DCA protection?

The Telco/Cable companies are government regulated which means they have some powerful friends.  My cell phone bill comes with 13 different taxes and fees, and my landline phone has nearly as many. That makes for a lot of government, state,  and regulatory agencies that are stakeholders in these businesses.

Or does being in a government regulated industry increase business risks? There is greater exposure to changes in political climates. And the will of the people can be expressed in unwelcome ways... 

Either way, I'm sure the newspaper publishers and their lawyers would love to have a more level playing field against Google and the rest--it costs them a lot of money to police media content.