The German government has published a draft law that will impose huge fines (up to €50m) on social networks that fail promptly to remove hate speech, fake news and other undesirable content from their platforms. Social media companies will be required to explain rules and complaint procedures clearly to users and follow up on each complaint. Content that is blatantly illegal must be taken down within 24 hours, while other law-breaking content must be taken down or blocked within seven days.
Said companies complain that this is yet another example of anti-American lobbying by Europe
Behind the proposed measure is a belief that the big internet companies aren’t taking their responsibilities seriously. “Facebook and Twitter missed the chance to improve their takedown practices,” said Heiko Maas, the federal minister for justice and consumer protection. “For companies to take on their responsibility in question of deleting criminal content, we need legal regulations.”
Stand by for howls of outrage from said companies, free speech advocates and political activists, together with conspiracy theories about how this is yet another example of anti-American lobbying by Springer and other European publishers. Less obvious, but equally vigorous, is the sound of lawyers rubbing their hands in gleeful anticipation of lucrative employment for years to come.
This is a significant moment in the evolving struggle between democracy and digital technology – or more precisely, between democracy and the companies whose platforms increasingly determine what people read, see and hear. As readers of this column will know, companies such as Facebook and Google have grown and prospered courtesy of a single clause in an obscure corner of the US legal code that enables them to pretend they are just conduits along which information flows from one point to another, and thus have no responsibility for the content that streams through their servers.
In the early days of the web (the relevant legislation was passed in 1996), that might just have been a reasonable proposition: it was a way of ensuring that the nascent web could grow organically rather than at the pace of the slowest litigant. But with the growth and dominance of the digital giants, it has become unsustainable. A Pew survey in mid-2016, for example, found that a majority of Americans said they get news via social media, and half of the public turned to social media to learn about the 2016 presidential election. This doesn’t mean that people get all of their news from Facebook and Twitter (TV still matters), but it does mean that the owners of big internet platforms have acquired some of the power that has traditionally been ascribed to print moguls and broadcasters. And with that power comes a responsibility that they do not wish to shoulder.
They have sound commercial reasons for shirking it. Accepting responsibility for the content the internet giants carry would be irksome and expensive. More importantly, it would undermine their business models, which depend on encouraging their users to do more and more online, leaving digital trails that can be mined, refined and sold to advertisers. So if you were a director of, say, Facebook, you could argue that you had a fiduciary duty to your shareholders not to take responsibility for what gets posted on the service.
But there are also some compelling public interest arguments against treating social media companies as if they were conventional publishers. In particular, there is the vexed issue of freedom of speech and the dangers of outsourcing judgments about what is acceptable – and what is not – to private organisations.
So what to do? The companies argue that, given the scale of their operations, straightforward policing of content isn’t possible. Their approach is to put the responsibility on users to flag up unacceptable stuff, which can then be inspected and decided upon. As the German justice minister observes, this isn’t working very well at the moment, but it could be dramatically improved. All that’s needed is a sufficiently powerful incentive. The prospect of a €50m fine should help to concentrate executives’ minds. It would also give company directors a fiduciary duty to ensure that the risk of fines is mitigated.
This approach can be made to work for some of the most unacceptable content – stuff such as hate speech or child sexual abuse that is clearly and unambiguously illegal. But much of what is now troubling on the net doesn’t fall neatly into that category. There is, for example, content that is grossly defamatory. But this can be siphoned off and dealt with in the usual offline way, through the courts.
That leaves only so-called fake news. And the problem with that is not so much the internet as the gullibility, credulity and sheer stupidity of mankind. For which we have, as yet, no solution. Still, two cheers for Herr Maas.