Should social media be allowed to ban users?

Both sides in the argument appeal to the fact that the platforms are privately owned

Earlier this month, Facebook’s Oversight Board upheld the decision to ban someone from its site. The “someone” in question happened to be Donald Trump, but that has no bearing on this article. I want to examine the debate that rages over the principle of social media sites being able to ban anyone at all from their platforms.

Typically, the debate focuses on the fact that these sites are owned by private companies. One side argues that, because these are private companies, they should be allowed to choose who to have as their customers. The other side argues that, because these are vital communication networks, private companies shouldn’t be allowed to ban any individuals.

But since both sides in the argument appeal to the fact that the platforms are privately owned in order to arrive at completely opposite conclusions, the status of the owner cannot be the decisive factor. We need another way to look at the problem. Fortunately, we have one. There is a well-established legal concept in which certain types of business, known as common carriers, receive special treatment, both in terms of any protections they might enjoy and any extra rules they might have to comply with. Telegraph companies, for example, received a level of protection from defamation lawsuits that was not available to other entities that transmit information.

The original common carriers were companies that transported people (eg railways) or goods (eg postal services). Historically, these companies were often given statutory protection from competition in exchange for a requirement that the carrier must serve all comers - and do so at fair, reasonable and non-discriminatory prices.

An arrangement of this sort makes perfect sense where, for example, the government wants to have two parts of the country joined up by rail, but it doesn’t want more than one railway line crossing the same area of land. Another reason is where the expected level of traffic won’t be sufficient to support more than one provider: in such a scenario, no sensible investor – whether in the public sector or the private sector – would commit funds without a guarantee that their business will remain the unique provider.

If the law deems social media sites not to be common carriers, that should be the end of the matter. Private carriers are generally allowed to pick and choose who they serve and on what terms. Just as a newspaper is free to choose which letters they publish, so Facebook should be free to choose which posts they accept … and from whom.

It gets more complicated if the law determines that social media sites could be eligible for common carrier status. That is not currently the position. But if it were to become so, should the sites be free to choose whether to accept the status (with all the rights and responsibilities the status entailed) or should the law simply impose common carrier status on any platform that met certain criteria? What should those criteria be? And what should be the extra rights, if any, that accompanied the responsibilities attached to the common carrier status?

Which brings us to the question that provoked this article:  would “common carrier” status mean an end to the notion that social media platforms can ban individual users? Not quite. Our traditional common carriers have rules which users must obey or face being chucked off the service. For example, the UK’s Railway Byelaws generally prohibit passengers from carrying anything dirty or dangerous; being drunk or high; gambling, spitting, singing in an annoying way or - who knew this one? - touting for employment. Anyone in breach of the rules can lawfully be removed from the train by the operator’s staff. And that applies regardless of whether the train operator is publicly or privately owned. Serious or repeated breaches may even result in being banned from the train service for several months or years, but that would require a court order.

So creating a regime in which a social media platforms could be designated as a common carrier – whether at the discretion of the platform owner or as a result of criteria laid down in the regime – would not put an end to social media bans. But the imposition of the banning orders would almost certainly be handed to an external agency, as should the rules for what can and can’t be posted on such sites.

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