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Remove ‘platform only’ defence of social media companies to speed up change

19 Feb 2019

The Commons Select Committee for Digital, Culture, Media and Sport (DCMS) published its report on social media, fake news and disinformation yesterday (18 February); the report was damning, to say the least.

In summary the committee called for:

  1. a compulsory code of ethics for social media companies requiring all harmful content to be removed by the companies, including “Fake News”;
  2. this code to be overseen by a Regulator with enforcement powers;
  3. reform to UK electoral laws.

The report makes for fearsome reading. The committee found that Facebook (which came in for especial and trenchant criticism) ‘intentionally and knowingly’ violated both privacy and anti-trust (anti competitive practice) law. Ouch.

The chair of the committee, Damian Collins, stated:

“Democracy is at risk from the malicious and relentless targeting of citizens with disinformation and personalised ‘dark adverts’ from unidentifiable sources, delivered through the major social media platforms we use everyday. Much of this is directed from agencies working in foreign countries, including Russia.

“The big tech companies are failing in the duty of care they owe to their users to act against harmful content, and to respect their data privacy rights.

“We need a radical shift in the balance of power between the platforms and the people. The age of inadequate self regulation must come to an end. The rights of the citizen need to be established in statute, by requiring the tech companies to adhere to a code of conduct written into law by Parliament, and overseen by an independent regulator.

“We also have to accept that our electoral regulations are hopelessly out of date for the internet age. We need reform so that the same principles of transparency of political communications apply online, just as they do in the real world. More needs to be done to require major donors to clearly establish the source of their funds.

“Much of the evidence we have scrutinised during our inquiry has focused on the business practices of Facebook; before, during and after the Cambridge Analytica data breach scandal.

“We believe that in its evidence to the Committee Facebook has often deliberately sought to frustrate our work, by giving incomplete, disingenuous and at times misleading answers to our questions.

“We also repeat our call to the Government to make a statement about how many investigations are currently being carried out into Russian interference in UK politics. We want to find out what was the impact of disinformation and voter manipulation on past elections including the UK Referendum in 2016 and are calling on the Government to launch an independent investigation.”

Fake News

In this Final Report on ‘Fake News’, the committee confirms recommendations from its interim report published last year:

  1. legal liabilities, clear in nature, to be put in place for social media companies to take measures against harmful or illegal content;
  2. the concepts of harmful and illegal content to be defined in Code of Ethics (compulsory in nature);
  3. a statutory regulator responsible for ensuring obedience to the code, with enforcement powers;
  4. severe fines for transgressing companies;
  5. removal of the defence of merely being a ‘platform’ without the responsibility of a ‘publisher’.

Misuse of data - the targeting of individuals

The Committee slammed Facebook, referring to court documents published in December 2018 relating to the Six4Three case in the Californian circuit court. These documents (internal Facebook emails between 2011 and 2015), suggested to the Committee that the company was quite prepared to:

  1. override its users' privacy settings with the intention of transferring data to certain App developers; and
  2. charge high advertising prices to certain App developers, in exchange for the exchange of data, and
  3. prevent certain App developers ( of which Six4Three was one) of that data.

The Committee has published more evidence that can be found here to support its findings in regards to the Six4Three documents.

The Committee urges Information Commissioner, Elizabeth Denham, to investigate the practices of Facebook.

MPs did not stop there with Facebook: “By choosing not to appear before the Committee and by choosing not to respond personally to any of our invitations, Mark Zuckerberg has shown contempt towards both our Committee and the 'International Grand Committee' involving members from nine legislators from around the world.”

Ouch again.

Facebook and Russian disinformation

The DCMS Committee has written repeatedly to Facebook asking about Russian activity on the Facebook platform. The Committee also wanted to know what knowledge Facebook had of Russian advertisements during the US Presidential election in 2016. Many will recall that The New York Times reported in November 2018 that Facebook had discovered Russian-linked activity on its site in 2016, attempting to disrupt the US election.

Finally the DCMS committee found that two Facebook employees who gave evidence before the committee had “deliberately misled the Committee or they were deliberately not briefed by senior executives at Facebook, about the extent of Russian interference in foreign elections”.

The way forward

The DCMS report can be seen and will be seen by many as devastating attack on Facebook and what it clearly viewed as its culture of knowing and intentional lawbreaking. But the five main recommendations (detailed above) will be seen as a sensible and pragmatic attempt by lawmakers to at least try and regulate the social media phenomenon.

Perhaps the most powerful of these is the last: remove the ‘platform only’ defence, acknowledge the companies as publishers and let lawyers do their job with the tools of defamation. A constant stream of law suits will force Facebook and others to take some responsibility for what they have on their platforms.

 

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