On the “state-big tech” debate in social media regulation
The title wishes to sum up the literal ‘it-debate’ (the IT-debate, if you will) of the century. Many international events starting up the new year provided inspiration for the below discussion of some of the legal and policy issues in this domain.
Let’s start in Hungary, where an end-of-January session of the so-called Digital Freedom Committee discussed unlawful practices of big IT companies, often also referred to as TAGAFA or the big five and their affiliates. (To accommodate the trend, I will just refer to them as “big tech” from now on.) Then February kicked off with a revelation by a domestic news outlet that by Spring the draft bill of the Hungarian “Lex Facebook” will be rolled out of the Ministry of Justice. (For now, the third wave of COVID-prevention seems to have intervened, but the prospect of such a law is very much intriguing, given the most recent developments in privacy protections regarding primarily the physical space, introduced through constitutional amendment no. 7., and the subsequent adoption of Act No LIII of 2018 on the protection of privacy)
Now, to understand where the debate regarding any state regulation of big tech companies and social media platforms owned and/or operated by them, let’s turn back the hands of time to about five years ago, to the United States. The Cambridge Analytica scandal – also involving Facebook – and its continuing ripple effects, leading up to the election of Donald Trump and the ensuing, and deservingly infamous, Mueller Report on the alleged Russian interference with the presidential elections relit the spark of the ‘Social Dilemma’, this time, in term of state “restraints” on traditionally self- regulating social media platforms and the big IT-companies behind them in the face of the free speech protections provided under the First Amendment.
Almost simultaneously, on the other side of the Atlantic, in cooperation with the European Commission, pioneering public commitments were undertaken by the big tech companies present at that time in the European market as part of a code of conduct to eradicate (broadly speaking) hate speech from their sites, leading up to its fifth evaluation cycle (2020). Every so often it might happen that political speech on these platforms incites hatred or communicate ‘fake news’, therefore it is all the more important that their corporate and state regulation be possible, mutually reinforcing each other in order to avoid further escalation and to impress upon the significance of prevention.
Rule-of-law checks (rather controls) on freedom of expression on social media however cannot fully slip out of the hands of the state and state institutions, because this would e.g. take away the possibility of legal redress against corporate actions or decisions taken or made in this regard. In this regard, renowned Hungarian media law and freedom of speech expert, Professor András Koltay said in an interview given to ICRP Budapest already in 2017 that “Google and Facebook have implemented their own separate “legal systems” that are quicker and more efficient than the legal system of any state; nevertheless, the decisions adopted by them are neither transparent nor subject to any procedural guarantee of the rule of law.”
Corporate and state competences in this sector are concurrent and also overlapping, thus becoming shared as well. The creation of the Facebook Oversight Board (FOB) is a clear example of this concurrence with state authorities. Tamás Pongó argues that functional similarities are apparent between the FOB and national constitutional courts, the ECtHR or even the US Supreme Court. He is definitely right in stating that where a market actor establishes an autonomous ‘quasi court’, a new era begins in the in limiting freedom of speech. The FOB may indeed be very similar in its function to a Supreme Court. Maybe this is why Juncal Montero Regules so cleverly identifies its decisions – in the context of hate speech moderation – as the “Marbury v Madison of platform governance” on Verfassungsblog. In her post, she also pointed out how the FOB failed to take into consideration the “nature and reach” of the posts examined, which – she argues – inform any decision about context. If we take a different approach to the context of these cases, the context of their reception and perception is also important. A recent Ars Technica article demonstrated that in 4 out of 5 cases the FOB ruled against the company’s decision, which might or might not be – as Regules argues in reference to the Board itself – part of “a PR exercise from Facebook”.
Whatever one may think about the eventual success or failure of the FOB, my previous argument that there is a concurrence – better yet competition – between corporate and state bodies to regulate social media still stands. We can see many more examples to this world-wide as well. In recent months and weeks, we had seen news reports regarding how states try and to some extent regulate the workings of social media and their big tech background – just consider the ban on the former US president’s accounts due to his involvement in the events at the Capitol on 6 January.
Poland has again made it into the crosshairs of public opinion when the deputy minister of justice, Sebastian Kaleta published an honest confession in Newsweek online about why he decided to regulate big tech companies. He referred to John Milton’s famous parliamentary speech Aeropagitica, in which the famous orator pleaded for freedom of the press of limitations imposed by the government in mid-17th century England. The Polish politician then addressed the gatekeeping function symbolizing control, which – he argued – is now (on the internet) no longer in the hands of the state but in those of big tech companies, and this is “the stroke that broke the camel’s back” leading to the Polish draft bill of the state regulation of social media. Based on what is currently known about the draft law (announced at the end of January) from secondary sources (available in English), without an actual legislative text to look at, is that it purports to establish a Freedom of Speech Council, of six members elected by the Sejm (with a 3/5 majority) for six-year terms from the fields of law and media. The Council is to be designed as a sort of appeals forum against decisions made by social media platforms and its proceedings and competences would be tailored to Polish national law. In other words, it would serve as a “reverse FOB”, a state equivalent of that body.
Based on all of these examples then the oh-so-often heard questions rings in the ears of everyone: quis custodiet ipsos custodes? Who watches who then? I had this in mind when I referred to the 2016 EU Commission code of conduct above. This EU initiative and its afterlife in terms of regulating the European digital market is not only important in and of itself. It is significant, because it has imprinted on Member State laws and legislative thinking as well. Germany, for example adopted their Act to Improve Enforcement of the Law in Social Networks in 2017 (which then entered into force in 2018), also called NetzDG, regarding which certain early caveats have also been voiced by Stephan Theil on Verfassungsblog.
As one of the gatekeepers of online freedom of speech, the European Court of Human Rights has many times decided in cases involving Hungary as well, evaluating national rules or their absence in this respect. In the Member States of the Council of Europe, also based on some of the above examples, we can see that the state answers to regulate online free speech platforms (especially social medias) and big tech companies behind them are manifold, but this is the situation is other parts of the globe as well. Everyone tries to cope with these new-found challenges as best as they can.
In Turkey, news reports warned that advertising activities of Twitter, Periscope and Instagram have been halted and their platforms affected by bandwidth and access-limitation, seeing as they did not establish or appoint a national contact office under legal obligations binding on them to do so adopted by Turkish legislators last October. Besides the above companies, Facebook only complied with these requirements at the end of January, after a longer period of resistance to do just that.
From Australia, news reports let us know that Google has taken blocking access to its search engine on a nation-wide scale in response to plans of a unique piece of Australian legislation (i.e. the News Media and Digital Platforms Mandatory Bargaining Code) requiring big tech companies to pay royalties for news content displayed on their platforms ‘taken’ from news agencies and services. According to information made public by BBC – legislators of the “news code” have referred to Google’s monopoly as justification, the lack of its market competitors and to a government classification of the Google search engine as “near essential utility”. In response to this act, Facebook has banned news feeds in Australia on a nation-wide scale this past week only to lift the ban after a few days in what can be easily interpreted by an astute observer as a “show of force” to reach a deal with the government. Regardless, the law is before the Senate awaiting further debate during the coming weeks. In other news, we can also read that Google has already agreed to pay royalties to Rupert Murdoch’s News Corporation for content, so ‘mandatory bargaining’ already works to some extent. This last example is only tangentially connected to online free speech on social media platforms but – in the intended context of the proposed legislation (possibly to counter the spread of fake news (?) – nonetheless raises important questions regarding access to public interest information in the form of news. Quality, frequency and accessibility of news is what fundamentally shapes public opinion, and as such public opinion that is reflected on social media platforms based on these news.
Based on the above, the tug-of-war between state regulators and corporate giants is very much visible. Both sides want to dominate the online market of opinions. The century’s ‘IT’-debate however cannot be resolved by ‘mutually assured destruction’ in this field. It should much rather be approached by the creation of a fair and equitable balance between corporate self-regulation and state-imposed rules. To use a very chic turn of phrase in constitutional discourse on free speech, none of the two sides can be ‘captive audiences’ of the other, because if this should come to be, only freedom of speech would suffer the consequences.
In a constitutional legal sense, at least based on the practice of the Hungarian Constitutional Court, freedom of speech is not an absolute right, but as the so-called ‘mother-right’ of communication rights it shall only give way to very few rights. “Although the privileged place accorded to the right of freedom of expression does not mean that this right may not be restricted – unlike the right to life or human dignity which are absolutely protected – but it necessarily implies that the right to free expression must only give way to a few rights; that is, the Acts of Parliament restricting this freedom must be strictly construed. The Acts of Parliament restricting the freedom of expression are to be assigned greater weight if they directly serve the realisation or protection of another individual fundamental right, a lesser weight if they protect such rights only indirectly through the mediation of an institution, and the least weight if they merely serve some abstract value as an end in itself.” – argued the Court already in 1994, and these lines have a very familiar ring to them in light of current debates globally, but in Hungary as well.
When we address big tech issues, their cooperation with the respective states is a key factor, ensuring compliance. They shall not only have their users and employees comply with their internal governance norms. States, in turn, shall provide legroom for self-regulation and for CSR to penetrate into the domains of free speech checks, but with certain clear limits. Red lines need to be drawn, serving as gatekeepers of the gatekeeping functions for social media platforms and the big tech companies behind them. Traditional state controls of these forms of expression must not be allowed to be exclusively controlled by corporate interests, functions and forums, certain essential state functions in this realm shall remain, complemented by corporate tools to the extent necessary.
Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: firstname.lastname@example.org