Re-evaluating platform liability when ‘users’ become ‘subscribers’

Unlike what Kangana Ranaut claimed on Twitter, ‘people’ did not ‘hijack’ Elon Musk’s idea of offering a subscription version of Twitter called ‘Twitter Blue’.

Jack Dorsey was still Twitter’s CEO when Twitter Blue first launched, back in June 2021.

At that time, the Twitter Blue subscription, launched only in Australia and Canada, entitled users to features like bookmark folders, undo tweet, reader mode, customizable app icons, and dedicated subscription customer support.

Then, Snapchat launched its own subscription program in August 2022, with the rollout of Snapchat+ subscription program. For $3.99/month, Snapchat+ subscription entitles its members to receive exclusive, experimental, and pre-release features first, before others.

Finally, in December 2022, Twitter under Elon Musk relaunched the subscription product called Twitter Blue, with added features on top of what was announced earlier, including the option to edit a tweet, 1080p video uploads, and a host of ‘coming soon’ features like the ability to post longer videos, 50% fewer ads, and most importantly, the promise: “Rocket to the top of replies, mentions and search – Tweets from verified users will be prioritized — helping to fight scams and spam”.

You could say that Meta’s Mark Zuckerberg did copy Twitter, but he did not copy Elon Musk(‘s Twitter). He sought inspiration from Jack Dorsey’s Twitter when he announced Meta Verified recently, rolling it out in Australia and New Zealand first, for a monthly subscription of (USD) $11.99 on the web and (USD) $14.99 on iOS and Android.

Earlier attempts at verification on both Twitter and Meta (Instagram and Facebook) did not involve paying any money either upfront or on a monthly basis. They simply offered a way to authenticate a user as a real human being through Government ID and phone number submitted to the platform as proof.

But this subscription business is a totally different ballgame.

What does this subscription entail? A verified badge (upon authentication with a government ID), protection from impersonation with proactive account monitoring, dedicated customer support, and most importantly, “Increased visibility and reach with prominence in some areas of the platform– like search, comments, and recommendations”.

In comparison, one platform has always had a ‘Premium’ version that we could subscribe to – LinkedIn. LinkedIn Premium has been available long before any other social platform even considered charging users. But LinkedIn Premium offers only the ability to contact anyone (even when not connected), deeper insights and data, and access to learning courses.

Given this backdrop of 3 platforms offering a subscription version of what was always fully free (ignoring LinkedIn here for a reason that I will address soon), there is little doubt that we are witnessing the early days of the free user of social media morphing into a paying subscriber.

Unlike LinkedIn, which billed itself as a ‘professional networking platform’ and hence had paid versions primarily for sales and HR professionals to be able to reach people (cold-call‘s equivalent online) and more importantly, the much-touted, ‘See who viewed your profile’ feature, made perfect sense because of the sheer amount of personal (or rather, professional) details one added to their LinkedIn profile compared to any other platform online where the bio was very brief and strictly functional, at best. On LinkedIn, the detailed bio was the entire point. So, a Premium version made sense.

How does this ‘subscription’ work?

Think of an analogy from the Indian film industry. There is a system for hiring junior (that is, background) artists in Indian films. But these artists need to belong to the Junior Artists Association and need to hold a membership card with them. Even if producers and directors could hire anyone they want to, the association insists that they hire only from the registered membership pool. These members get the stamp of approval from the association besides other benefits.

A Meta Verified or a Twitter Blue subscriber seems akin to such a member. Brands and agencies that want to work with online influencers could insist on the basic check – are they paying subscribers of these 2 platforms? Of course, there is nothing stopping the brands or agencies to work with non-subscribers, but one specific feature within Twitter Blue and Meta Verified could tip the scale – increased visibility and reach.

Both Twitter Blue and Meta Verified promise increased visibility and reach in some way or another.

Twitter, on its Blue help page claims:

Ditto for Meta:

Whereas Snapchat and LinkedIn’s approach to subscription was simply deeper levels of details being made available to the paying users, Twitter, and now Meta, have also included a game-changing feature: if you pay, you are more visible than other, non-paying users.

Of course, both Twitter and Meta are pussyfooting around this claim so far. Twitter Blue says this feature is ‘coming soon’. Meta hasn’t explained how the increased visibility would work.

It’s no secret that one of the main draws of Twitter Blue is to overcome the poor engagement that seems to have plagued the platform, post-Musk, which led to bizarre hacks like locking your profile to increase engagement, a gimmick that even Musk fell for and tried, amusingly enough.

But, the bigger question is this: now that they have a paid version that prioritizes paying users’ content over free users’ content, could they be held liable/accountable for what their users write on their platforms?

That is, could paying subscribers make Twitter and Facebook too liable for what they write on those platforms?

Why this question, and why now?

Consider this update: the ‘two cases that could ruin the internet’ – Gonzalez v. Google and Twitter v. Taamneh (Vox)

The crux:

a. “websites like Twitter, Facebook, or Google-owned YouTube are legally responsible for the two ISIS killings because ISIS was able to post recruitment videos and other content on these websites that were not immediately taken down” (from the Vox article quoted above)

b. “the companies did more than simply provide platforms for communication. Rather, they contend, that by recommending ISIS videos to those who might be interested, they were seeking to get more viewers and increase their ad revenue” (NPR)

The point is that, under Section 230 of the Communications Decency Act (in the US), service providers have a liability shield. But now, “Columbia law professor Timothy Wu summarizes the administration’s position this way: ‘It is one thing to be more passively presenting, even organizing information, but when you cross the line into really recommending content, you leave behind the protections of 230.’ ” (quoted from the NPR article)

So, just like how YouTube and Facebook actively recommend content, Meta and Twitter would now be recommending (by prioritizing) paying subscribers (as against free users) in some form or other. That perhaps crosses the line when it comes to Section 230 – both Meta and Twitter are actively promoting certain types of user content because they pay the platform month on month. Such paying subscribers could be benign, garden variety influencers, or they could be nefarious players who could exploit the subscription plan precisely to get their message out more predictably. This is not very different from using those platforms to advertise.

There could be another line of thought that leads to a publisher-style liability for Twitter and Meta.

Consider a columnist in a print publication. They may or may not be paid for the column, but their write-up surely gets a placement (as chosen by the editor). Could Twitter Blue and Meta Verified actively recommending/promoting paid subscribers’ content be equated to a publication promoting a columnist’s content on their media channel?

In case of a defamation suit, for instance, those defamed have the freedom to choose the defendants, that is, the publisher and (or) the contributor. There is precedence for this too.

So, one could argue that should a paying subscriber or Twitter Blue or Meta Verified post something that is deemed defamatory, because those paying subscribers are prioritized and given higher visibility over non-paying users, both the subscriber and Twitter/Meta could/should also be held equally accountable.

Social media platforms have long hidden under the pretext of being mere intermediaries. But, with recent updates, it looks like they are exposing themselves more and more as active participants in how the so-called third-party content on their channels is showcased. A simple reverse-chronological showcase of tweets used to be the default on Twitter. But when algorithms prioritize paying subscribers’ content, not just the kind of content that is doing well (a signal that LinkedIn supposedly uses to show a piece of content on more timelines), there is active collusion to make some kind of content bubble up to better visibility.

That should surely account for increased accountability on behalf of the platforms too.

In a way, these updates (of aiding paying subscribers’ content to get better reach simply because they are paying) are taking us back to the days of mainstream media, away from social media. The hallmark of mainstream media was that a few chosen people, based on some criteria or other, had the power to access high-impact visibility platforms like television or print. In other words, TV or print had the power to choose anyone from relative obscurity to national/international attention. Now, social media platforms, by changing users to subscribers, are doing the same, for a monthly fee.