Increased regulation of the internet – the reflections of a legal hack

22 Dec 2020

Moves are afoot in the UK, the US and other countries to regulate the internet.
In October 2020, the US House Anti Trust Committee wrote in scathing terms the conclusions to its investigation into the activities of activities of Amazon, Apple, Facebook and Google. The members found that the big four had behaved in ways which were anti competitive: charging exorbitant fees, imposing oppressive contract terms, buying out potential rivals and predatory pricing, to name but a few.
Many of us in the world of internet compliance and regulation looked at this report as a shot across the bows of the big four, a sort of ‘do this again and we’ll take action’.
They appeared to largely ignore the Report and certainly didn’t moderate their conduct, and so two weeks ago (10.12.20) the US Federal Trade Commission (FTC) finally lost patience, bringing a ground breaking anti-trust law suit against Facebook at the heart of which is the allegation that Facebook bought up competitors to reduce competition.  The FTC is joined by 45 State prosecutors.
Facebook’s response was fury; its Counsel General, Jennifer Newstead, condemned the suit, saying:
‘The government now wants a do-over, sending a chilling warning to American business that no sale is ever final…..’
But the problem that regulators globally are faced with is that Facebook keeps misbehaving. The Cambridge Analytica scandal shook the faith of many in the way the company handled personal data. Mr Zuckerberg’s apology was praised by many; but he’s had lots of practice in apologising. And in July of this year, Facebook felt it had to offer $650million to settle facial recognition claims brought in a class action.
The EU (the UK was a Member State at the time) sought to regulate the use of data via the GDPRs, one way of seeking to control and regulate one aspect of the internet within the EU.  In 2017 Germany adopted its Network Enforcement Act (NetzDG) requiring the removal of ‘manifestly unlawful’ content within 24 hours of posting it.
Last week (15.12.20) the UK introduced the Online Harms White Paper. It sets out this challenge: with 90% of adults and 99% of children between ages 12 to 15 online, how do we, as a society, regulate what we see online? How do we differentiate what is acceptable opinion and content from what is hate speech or harmful?
This is the crux of it. We are all for freedom of speech, and for protecting our children and those vulnerable to exploitation.  But where do we strike the balance and differentiate between what is controversial opinion to one person, from what is harmful?
Look at the anti-vaccine lobby: some have genuine doubts, some cynically seek to exploit the fears of others. How do we look at a nude of St Sebastian and differentiate it from the worst forms of violent pornography?
Moreover, how do you regulate something which can move across the globe to billions of users at the speed of an electron?
I would argue that free speech is not and never has been an absolute. Too often ‘freedom of speech’ is argued by those who make profit without responsibility.
The mechanism proposed by the White Paper is an independent regulator responsible for setting standards, reporting, and enforcing standards.  The White Paper sets out a list of harmful activity with a clear definition, and harms with a less clear definition. Into the former go child abuse, terrorism, slavery, revenge, pornography, hate crime and others. Into the latter go bullying, intimidation, disinformation, advocacy of self harm and others.
Platforms will be required to have an easy access complaints procedure for victims and complainants.
The regulator will have powers to fine and even block the access of users to the internet. The White Paper opens the possibility of senior managers having personal responsibility for content on their platforms; the UK government is proposing fines of up to 10% of global turnover.
I accept that the platforms may cry foul. How are we, they ask, to regulate billions of posts per day? I fear the response of regulators worldwide will be: we have tried to make you put your house in order by voluntary codes and you have failed; it is therefore up to us, as governments, to put your houses in order for you.
Facebook and others in the social media world weald huge power that’s never been seen before: the power to reach 4billion of the world’s population. With great power comes great responsibility – and it is here they have failed, and here where others must step in and shoulder the burden that they have only paid lip service to. If freedom of speech is to suffer, then it is they who have brought about this situation.
Social media giants must not be allowed to make huge profits off the back of the victims created by social media.

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