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Opinion: podcast hosts should not be forced to remove fake COVID-19 information

March 15, 2020 · By · 1.6 minutes to read

In a recent newsletter, we asked whether any podcast host was removing fake or misleading information about the coronavirus - and whether they should. Gordon Firemark, an entertainment lawyer, responded:

It isn’t and shouldn’t be a hosting company’s responsibility to pro-actively filter and remove content they deem improper (for whatever reason) unless compelled by law to do so. (As in the case of a DMCA Takedown notice, or a court order).

Hosting companies should behave in as content-neutral a manner as possible, so they can be trusted to deliver ALL the information on offer, even when that information may be unpopular with certain segments of audience. Taking a more active role in filtering content strikes me as the beginning of a slippery slope toward censorship.

If hosting companies were to become arbiters of “truth”, then “truth” and “facts” become constructs of popular, rather than informed opinion.

Hosting companies must not cave in to special interests who propose to ban speech with which they don’t agree. Whether those interests be governmental, political, religious, or whatever, the proper antidote to speech is more speech, not limits placed upon it.

Now, I’m absolutely not saying that companies shouldn’t be free to make their own determinations about what kinds of content they will and will not permit to be hosted on their servers. That decision is as important a freedom of speech issue as the decision to create and publish the material in question. But we should not impose on hosting companies (or web services, social media services, etc.) an affirmative duty to filter content. That would risk making such companies instruments of the State.

Instead, let market forces come to bear on services that traffic in unpopular content. Consumers have choices, and will vote with their wallets, if given the data with which to make informed decisions. So, if you don’t like that HostCo permits certain kinds of content? Spread the word, and encourage like-minded podcasters to switch to other hosts. Companies will change their behaviour when their profits are threatened.

In the long run, diversity of voices, even dangerous ones, is better for a free, open society.

Comments are open, below.

—Gordon P Firemark is an Attorney at Law at Firemark Entertainment Law, and was admitted to practice in 1992. He's also host of his own podcast, Entertainment Law Update.

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