Wednesday, August 1, 2012

When property rights trump free speech, digital media outlets can be the loser

The incident involving Twitter this week has a lot of users wondering about the company's values, but the banning of The Independent's Guy Adams should be a reminder that digital media outlets are very often at the mercy of their distributors, whether that is Twitter, a cable company or ISP (often the cable company is the ISP).

For newspapers, used to controlling both the means of production and the distribution channel, this can be an eye opener. The whole idea of a "free press" is turned on its head when the news outlets suddenly realizes that producing their product no longer guarantees access their audience.

Today a whole range of new middle men are part of the equation. Apple, Google and Amazon, for instance, can determine whether your app meets its own guidelines for distribution.

In the first months of Apple's App Stores, plenty of apps were declined based on a wide range of objections including satire. In most case, Apple reversed itself and allowed the offending app into the store, though not always. (It should be noted that those cases involving political speech or humor eventually were approved.)

Two basic rights are at play here: property rights versus freedom of speech (or of the press). In the U.S., property rights generally trump other rights. You may have a right to criticize NBC's coverage of the Olympics, but Twitter reserves the right to ban you. That trumping of free speech leaves the media company or individual in a bind when the vehicle used to deliver information is in the hands of a third party.

But if Apple, Google or Twitter believe that they hold the upper hand they need to realize that the rest of the world doesn't necessarily believe in the supremacy of property rights. Europe, in particular, gets a little testy when they see a giant corporation treading on basic human rights. The scales of justice may not always come up with the same judgement on this issue, and so digital distributors may find themselves less able to freely deny access.

Just one or two years ago Twitter banning a user would have been seen as a nonissue. But today, media outlets use social media to drive traffic. As I write this post tweets from TechCrunch, Engadget, the BBC, Mashable, TalkingPointsMemo, the WSJ, Financial Times and the New York Times have appeared on my screen. Each tweet links to a story online, each link represents traffic, and that traffic represents ad dollars (or at least pennies). But each of these companies, whether they know it or not, are at the mercy of Twitter to keep the channel of communication open, just as they are at the mercy of Apple and others to keep their mobile and tablet apps accessible to the public.

Note: Twitter posted a blog entry yesterday explaining and somewhat back tracking on its banning of Guy Adams. It is important to note, though, that Twitter did not relinquish its right to ban a reporters Twitter account (as you'd expect) just that they would try and make sure this does not happen again. I believe them, I think. But Twitter is not the only distributor of digital content, and other companies probably would simple let it stand at "it's our right to say who uses our services."