Spotify and Misinformation: Are Streaming Platforms Carriers or Publishers?

Many people under 30 may not know who Neil Young is, and many people over 60 may not know what Spotify is. And yet, their recent conflict has a bearing on freedom of expression and corporate accountability.

Young decided to withdraw his entire catalogue of music from the Spotify streaming service, because it hosts Joe Rogan, a right-leaning podcaster who has frequently rattled liberal opinion. Young was provoked after he read a letter signed by hundreds of scientists complaining that Rogan gave uncritical space to Robert Malone, a controversial virologist who has researched mRNA vaccines and is critical of COVID-19 vaccines. A fact-check revealed many inaccuracies in Malone’s assertions.

In the highly charged and divisive politics over the pandemic, naysaying voices, such as Malone’s might seem plausible because they speak in a manner that appears authoritative. They have become influential among those who are sceptical of the pandemic, vaccines, or responses of governments. Pandemic scepticism is hardly new. While no vaccine is 100% effective, evidence shows that those vaccinated are less likely to become severely ill and less likely to die, compared to the unvaccinated. By raising doubts about vaccines, the Rogan podcast undermines public health measures and spreads misinformation, Rogan’s critics argue. Rogan’s defenders insist he has the right to speak freely, and restricting him presumably prevents people from getting access to the full range of views about the vaccines.

Spotify’s decision to remove the Rogan podcasts shows that it does exercise controls; that it is not a free speech zone as it claims to be. Nothing wrong with that – editors and publishers do exercise judgment about what they want to publish and what they won’t.

Young’s decision led to another rock icon, Joni Mitchell, as well as Nils Lofgren, India.Arie and others to withdraw their catalogues. Spotify attempted to assuage Young, with its chief executive Daniel Ek seeking a meeting with Young who asked Spotify employees to quit the company. Ek also apologized to his staff. Spotify also said it would post materials on the service for more accurate, scientifically-proven information about vaccines, so that its users are better informed. We are carriers, not publishers, Spotify seems to say; we carry all points of view. For his part, Rogan gave a weak apology, saying he was sorry if what he said upset people, but in slightly more colourful language.

Except that Spotify is not hosting Rogan as if it would host anyone else – it has signed a $100 million contract with him, for exclusive rights. This makes Spotify, in effect, a producer, a commissioner of programmes, a publisher, and editor. Furthermore, what prompted Arie to withdraw her catalogue wasn’t Covid misinformation, but persistent use of racist terms, in particular the N-word. Rogan apologized again, this time sounding more contrite. Spotify quietly withdrew over 100 episodes of the Rogan podcast without revealing why, but after anticipating the trouble. Right wing commentators urged Rogan to move to a service such as Rumble, which asked Rogan to jump ship, but Rogan refused. Rumble claims to be a platform for no-holds-barred freedom of expression.

A zone totally devoid of rules and regulations may seem like a libertarian dream, but it can lead to noise and chaos, and would not permit discourse or exchange.

Spotify’s decision to remove the Rogan podcasts shows that it does exercise controls; that it is not a free speech zone as it claims to be. Nothing wrong with that – editors and publishers do exercise judgment about what they want to publish and what they won’t. Some have clear rules and policies – tobacco advertisements are banned in many countries, and many publications do not print alcohol ads, or ads selling guns, or other material that undermines social order or morality. Newspapers have their codes of ethics or conduct too, to which they claim to adhere, and different jurisdictions have rules and laws to regulate what can be said in the public domain. Some governments interpret those laws narrowly and harshly, chilling free speech; some governments give a lot of latitude to the speakers. In the United States, a statement can be made even with ‘reckless disregard of truth,’ if it is made without malice in cases involving public officials. Prosecutors may enter the scene when there is clear and present danger of imminent violence being incited. Besides, the First Amendment of the US Constitutions prevents the state from passing laws that restrict freedom of the press, and S. 230 of the Communications Decency Act clearly says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Internet platforms rely on that section to justify their inaction. But the US law is not international law, and Article 19 of the International Covenant for Civil and Political Rights places certain restrictions in certain circumstances on freedom of expression. While being aware of the misuse of such laws, UN special rapporteurs recognise the importance of such provision, because they also recognise the potential and actual harms unbridled free expression can do.

Spotify argues it is not a publisher, that it is a mere carrier. But it isn’t a carrier which permits any traffic. It does have standards; its platform is not one where anything goes. A zone totally devoid of rules and regulations may seem like a libertarian dream, but it can lead to noise and chaos, and would not permit discourse or exchange – it elevates shouting to an art form, where people talk past one another. That’s cacophony, full of sound and fury, signifying nothing.

Companies like Spotify want to have it both ways: retain some control, permit traffic that lures users, and commission performers (including controversial podcasters) on an exclusive basis, to draw more users.

That sort of no-holds-barred discourse permits the vilification and humiliation of minority voices, and intimidating the vulnerable, the point which UN and other experts note. And many activists, women human rights defenders, and journalists have begun to opt out of social media platforms that do not ‘police’ speech precisely because given the abuse they receive, they have calculated that it is simply not worth their time. There are worse outcomes, too: unfettered and unrestricted dissemination of hate speech online can have disastrous off-line consequences, including threats of sexual assault and violence which women have faced; incitement of genocide, as has been the case in Myanmar; the spread of unsubstantiated rumours which have led to deaths through lynching in India; and rapid and mass spread of lies which have influenced elections and undermined trust in democracy and institutions. In her Nobel Prize acceptance speech, Maria Ressa, the courageous journalist from the Philippines said: “Social media is a deadly game for power and money, what Shoshana Zuboff calls surveillance capitalism, extracting our private lives for outsized corporate gain. Our personal experiences are sucked into a database, organized by AI, then sold to the highest bidder. Highly profitable micro-targeting operations are engineered to structurally undermine human will – a behaviour modification system in which we are Pavlov’s dogs, experimented on in real time with disastrous consequences in countries like mine, Myanmar, India, Sri Lanka and so many more. These destructive corporations have siphoned money away from news groups and now pose a foundational threat to markets and elections.”

Companies like Spotify want to have it both ways: retain some control, permit traffic that lures users, and commission performers (including controversial podcasters) on an exclusive basis, to draw more users. Ek did acknowledge that having commissioned and paid Rogan handsomely complicates his claim of being a mere carrier, but he did not say he would not commission other podcasters who may be divisive. He only said he’d invest in podcasts that present alternative views.

if Spotify intends to be taken seriously as a platform that provides access to entertainment and information, it has to live by certain standards. Those are not hard to seek.

The trouble with this approach – that each alternative view is worth listening to – is that it assumes that ideas have equal merit. There is an old saying in journalism: when one side says it is raining and the other says it is not, the role of the reporter is not to present both points of view, but to open the window and see if it is raining – or not. Merely because someone believes the earth is flat does not mean a platform like Spotify should sign up such a podcaster and present the view as if it were the truth (unless it is satire).

Presenting accurate information is all very well, but we live in highly polarized times. It would be naïve to assume that someone drawn to a podcast such as Rogan’s would then want to cross-check the facts by listening to a nuanced, complex counterview. The damage that podcasts such as Rogan’s do is the way they manipulate emotions through powerful, persuasive, seductive language.

This does not mean Rogan should be banned. But it does mean that if Spotify intends to be taken seriously as a platform that provides access to entertainment and information, it has to live by certain standards. Those are not hard to seek. Newspapers and magazines around the world have honed that craft and know the difference between facts and opinions, and the need for balance when opinion is expressed. The US Federal Communications Commission had a ‘fairness doctrine’ between 1950s and the late 1980s which required the holders of broadcast licenses to present controversial issues of public importance in a way that reflected differing viewpoints. Over the years, the requirement was relaxed and broadcasters themselves had developed processes to internalize the doctrine, although some broadcasters began to ignore it, by flouting its intent. Internationally, this can get problematic, as under the guise of insisting on fairness or impartiality, governments with a poor human rights record may attempt to force platforms or publications to prohibit certain unpopular views. When he was UN special rapporteur on the right to information and expression, David Kaye treaded the fine line, by calling upon states to repeal laws that criminalise expression and opt for ‘smart regulation’ that is not heavy-handed, and for companies to be more transparent about what they do and why by being publicly accountable. He also reminded companies that the authoritative global standard is the human rights law, and not specific national laws.

Permitting controversial opinions to be aired without being intimidated is important for a publisher or broadcaster. Users have the right to all points of view. But the devil is in the details, in the nuances that must regulate such decisions.

Granted, doing that is not always simple, and fairness is a subjective standard. The simplest way is for platforms to accept they are publishers or broadcasters and adhere to such standards. Facebook has since established a supervisory body where affected users can appeal when they feel their rights are affected. Twitter has a trust and safety council which advises the company about how to improve the health of public conversation about online safety and harassment, suicide prevention and mental health, child sexual exploitation, and dehumanization, and a temporary group on content governance (disclosure: IHRB is part of that group). These are necessary, though not always perfect steps companies should consider if they want to retain user trust that they are acting responsibly. Government regulation of what can be said in public is profoundly problematic. Permitting controversial opinions to be aired without being intimidated is important for a publisher or broadcaster. Users have the right to all points of view. But the devil is in the details, in the nuances that must regulate such decisions.

In simple terms, it means Spotify has to choose between giving space to an unrestrained podcast merely because it is extremely popular or provide space to robust critiques. And are those robust critiques easily accessible, or only in some obscure link at the bottom of a controversial podcast, much after emotions have been roused. And finally, to open the windows and check if it is raining, rather than allow one side to say it is, and another, that it isn’t. And if it is raining, to stop streaming material that insists it is a bright, sunny day.