János Tamás PAPP: New Winds Blowing in the Skies of Online Platform Regulation
Facebook and Instagram, owned by Meta, have been temporarily banned from tracking online user activity for ad targeting in Norway. The ban, effective from August, is the result of an order from the Norwegian Data Protection Authority due to Meta’s opaque and intrusive ad practices. During the three-month ban, Meta can show personalized ads only using information provided by users themselves. Non-compliance could lead to daily fines of 1 million Norwegian Krone (€89,500). This ban may be lifted if Meta finds a legal method for data processing that allows user opt-out. This kind of new sanction can be seen as quite novel and is certainly a welcome result of the growing regulatory effort.
Legal regulation tends to lag a few steps behind changes in life and rarely anticipates them, and this is particularly true in the rapidly changing media field. Over the last decade, three major US companies, Facebook, Google, and Twitter, have become the most dominant platforms for online discourse. This process has in effect privatised the social spaces available on the internet and the rules governing what is allowed on these platforms. The popularity of these platforms has increased in proportion to the responsibility and influence of their operators. Platforms, while undoubtedly broadening the scope for individual expression, also distort the public sphere and fundamentally redraw the structure of the public sphere, with a decisive impact on the evolution of social dialogue.
Be that as it may, however hard regulation tries, it has not yet found a way to curb this growing influence. There are many jurisdictional and private international law issues raised by this phenomenon, but the most important is the question of what sanctions can actually be used to curb these platforms. Of course, financial fines are the best way to express the kind of punishment we can impose on similar companies, but in many cases, this cannot always be effective, as we have seen in Australia, for example.
In 2021, Australia sought to legislate the situation of platforms and the journalistic content they lavishly offer, and to establish a framework for cooperation between platforms and the various news media that would reward news media appropriately in return for the monetization of news by platforms. However, Facebook, which opposed the decision, tried to put pressure on the Australian government by blocking news sharing on its platform in Australia. The move, which was seen by many as a form of blackmail, was ultimately successful, as Australia has amended the law on certain points, so that in the future it will remain up to social platforms and content providers to decide what exactly constitutes news and how much they can charge for it, rather than the law.
The Norwegian decision finally represents a different approach to sanctions and tries to hit platforms where it really hurts them. With such significant financial revenues, fines are often laughed off, but such limits are a clear step forward in terms of regulatory attitude. Of course, we will only be able to judge the effectiveness of the decision in hindsight, but it is certainly welcomed that the regulator is looking for new and creative ways to stipulate global platforms.
János Tamás Papp JD, PhD is an assistant professor at Pázmány Péter Catholic University, Hungary, and a legal expert at the Department of Online Platforms of the National Media and Infocommunications Authority of Hungary. Where he has taught civil and constitutional law since 2015 and became a founding member of the Media Law Research Group of the Department of Private Law. He earned his JD and PhD in Law at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University. His main research fields are freedom of speech, media law, and issues related to freedom of expression on online platforms. He has a number of publications regarding social media and the law, including a book titled „Regulation of Social Media Platforms in Protection of Democratic Discourses”.