Oh look…the wheels are falling off

I’m not one to rubberneck at traffic accidents, but I am fascinated watching the wheels fall off social media.

First Facebook and Twitter scored an own-goal by banning Donald Trump in acts that demonstrated beyond a shadow of doubt what everyone (except Mark Zuckerberg and Jack Dorsey) knew already – they are publishers. We’ll return to the implications of that shortly.

Then Google strong-armed the Australian government over impending legislation and, by threatening to turn off its search engine, acknowledged what everyone (except Larry Page and Sergey Brin) knew already – it is a monopoly. We’ll come back to that, too.

Of course, there is nothing new in the platforms acting as the digital demagogues they are, but this time they may have crossed a line that even the cosy accommodations of US law cannot afford to ignore.

Section 230 of the 1996 US Communications Decency Act states that ‘no provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider’. In effect, it gave the social media the same protection a telephone company had enjoyed as a ‘common carrier’. 

No telco had been clever enough to attach billions of dollars of advertising to the calls they carried. The social media platforms, on the other hand, realised their millions of users were advertising goldmines, and the fact that they were not ‘publishing’ the petabytes of content they have carried meant they felt no obligation to pay the original creators. Nor did they face the legal liabilities that condition the way publishers behave.

Those liabilities are among the reason publishers mediate the content they carry, along with moral, ethical, social and, yes, commercial considerations.

To say that social platforms do none of those things is, of course, a nonsense. Each of them moulds content according to the individual desires, habits and perceived needs of its users. The difference is that it does so through the use of sophisticated algorithms rather than human editors. Only in cases of egregious harm – and usually under commercially-damaging public pressure – do the platforms make human interventions and, even then, minimally.

I liked the way New York Times technology columnist Kevin Roose described their actions: “These companies, corporate autocracies masquerading as mini-democracies, often portray their moderation decisions as the result of a kind of formulaic due process, as if ‘Don’t incite an insurrectionist mob’ had been in the community guidelines all along. But high-stakes calls like these (the banning of Trump) typically are due to gut decisions made under extreme duress.”

By totally banning now-former president Trump from their platforms, Facebook and Twitter made editorial decisions on the basis of potential future conduct, not past content and, in so doing, according to UK digital journalist Fraser Myers writing in the Daily Telegraph, they ‘crossed the Rubicon’ – “If the technopolies can deny a platform to the leader of the free world, then they can deny a voice to anyone.” 

Denying a voice is a prerogative that publishers have long claimed and, where they do allow a voice to be heard, they reserve the right to edit what is said in accordance with their editorial values and production demands. Flat Earthers don’t get space in a newspaper any more than foul-mouthed bikers are allowed to spout obscenities on the 6pm television news. Moderating such content is what publishers (and that includes broadcasters) are expected to do.

You can argue long and hard over whether Trump – and a host of associated users – should have been banned. What you can’t argue is that it was not the action of a publisher. Of course, it was.

Australian columnist Janet Albrechtsen suggested the action was a final acknowledgement of that status: “By banning Trump and carrying out the equivalent of a book-burning exercise by laying waste his entire history of tweets, we know that they consider themselves publishers.”

Such an acknowledgement should open the way for nations and their media organisations to finally receive equitable compensation for commercial re-use of their content on the basis that re-publication which in some way attaches advertising and/or other revenue generation to content must be a commercial use. 

Unfortunately, we cannot expect the social media platforms to meekly roll over. History suggests otherwise, as does Google’s threat last week to the Australian government.

That threat has a precedent but the ultimatum to Canberra raised the stakes. In 2014 Google shut down its Spanish news-linking site after the Madrid government gave its publishers an ‘inalienable’ right to charge copyright fees. Research by Joan Calzada and Ricard Gil found the closure resulted in a reduction of between eight and 14 per cent in the number of daily visits to Spanish news sites. The denial-of-service Google now threatens – cutting Australians off from its search engine – is a different level of magnitude. Google has a 95.24 per cent share of the search engine market in Australia. The next largest (Microsoft Bing) has a little over three per cent.

I hope the Australian government holds its nerve. Certainly, Prime Minister Scott Morrison has said bluntly that “we don’t respond to threats” and he may be hoping that Google will blink because of other problems that are confronting it. 

The threat against Australia speaks volumes about monopoly power and last month the attorneys-general of 35 US states filed an anti-trust suit against Google, accusing it of illegally protecting a monopoly over its search business. It is one of a spate of anti-trust actions in recent months against social media platforms including Facebook (which also owns YouTube). The case comes on the heels of two other major antitrust lawsuits against Google, one by the justice department plus 11 states and another by 10 states.

The digital giants have become expert at swatting away legal actions aimed at curbing their power, but these filings may signal a turning of the tide. “There’s not been a cluster of cases of this significance since the 1970s,” William Kovacic, a law professor at George Washington University and a former chairman of the Federal Trade Commission told the Guardian. “This is a big deal.”

Google and Facebook have pockets deep enough to keep all of these cases in the court for years and to forego Australian revenue to avoid giving ground. However, they face issues on an increasing number of fronts and the cumulative effect may make their wheels finally fall off.

Last year the United States walked away from talks over a global digital link tax that would achieve much of what Canberra is seeking. However, two weeks ago the European Union announced consultation on sweeping proposals for what it describes as “a fair tax on the digital economy”. Its wide-ranging directive could provide a means by which all member states have uniform digital tax laws and include a tax on appropriated content.

The Trump ban has been an explicit demonstration of the political power that social media platforms wield in their own corporate interest irrespective of past relationships. A New Zealand Herald editorial said it “underlined just how much unelected power is in their hands”. 

President Biden may have the courage to finally take them on in the same way that his predecessors acted against the railway barons and Standard Oil. The weapon they used – the Sherman Anti-trust Act – is still fit for purpose and has been supplemented with further powers over the years.

We can still have social media, just as we still have railways and energy companies. However, they must be equitable, accountable, competitive and pay their dues (be they taxes or fees to reuse material others have paid to create). In other words they must be safe vehicles we are happy to have on our roads.

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