Social media platform companies are reeling from an onslaught of regulatory efforts by all the major governments in the world.
In the United States, the Supreme Court is listening to arguments in a case that will decide the responsibility of social media companies for the content shown and recommended to users on their platforms.
Platforms are protected from legal liability for that content that users post. So, one cannot sue Facebook for a defamatory article that their rival posted on the platform. The outcome of this case will be crucial in deciding the legal responsibilities of companies. There are several cases pending in Indian courts on similar issues but with no fixed schedule on hearing dates nor any final decisions.
Current market realities are also hurting the advertising businesses, the real source of the wealth of social media platforms. Social media giants have laid off tens of thousands of workers, including – at Twitter – entire departments responsible for interacting with the take down requests of national governments.
If these behaviour-collection behemoths were ever willing to challenge overreach by governments, that time has passed, probably for good. “We obey local law wherever we do business” is a position so obviously sufficient that even Twitter’s chaotic new owner, businessman Elon Musk, has not found it necessary to depart from.
No matter how the cases are decided, there will be a lot more laws to obey around the world.
Countries, meanwhile, have started large-scale regulatory efforts to control the free flow of information. India’s Ministry of Electronics and Technology has formulated rules to remove what it deems “fake or false” news and moderate online content. Some of it necessary and most of it an overreach.
As the European Union’s Data Services Act – aiming to protect the fundamental rights of users – comes into force, national legislatures and perhaps even the United States Congress, are all entertaining new regulatory regimes. Concerned as they are with “misinformation”, lawmakers are favouring requirements for faster takedowns, with greater legal and damage liabilities for failure to do so.
These are, on their face, regimes designed to make platforms efficient sub-contractors for the suppression of “misinformation”. This, surely, always tends to include all information a government wants to suppress. As previously noted, collisions between national governments and platforms have always been settled at the expense of user rights.
We are not leaving behind a golden age by any means. But the instantaneous surrender of Twitter and YouTube to government demands to remove all links to “objectionable” journalism proves that we can no longer anticipate even symbolic opposition, let alone serious and effective policy engagement.
Platforms used to test the censorship resolve of governments to maintain their credibility with users as defenders of free expression, just as they built systems of content moderation to maintain brand safety credibility with advertisers. But user trust has long since vanished and such gestures are now mostly too expensive for their straitened means.
In recent days, social media platforms have folded instantly over posts, articles, coverage, documentaries, films not for exceptional reasons, but for the reasons that will largely govern their conduct from now on. They will not raise any issues, because they can no longer afford to raise these issues. Their silence means that user rights have ceased to be even an aspiration.
A concept fundamental to democratic liberty, that the people have a right to learn from what their government derides as propaganda, is not merely dishonoured but it ceases – for all practical purposes – to exist. As the sober second thoughts of humanity turned against platforms over the last few years, they continued to assert that their good effect – bringing people together, including to organise for social change – offset their increasingly evident drawbacks.
But in their new role as the active implementers of every government’s preferred censorship policies, these companies have given up the one shred of argument in their favour. “Making the world more connected” while scrupulously approving all the censorship requests of aspiring despots is complicity in spreading despotism.
Opponents of social media platforms have been pointing out this problem with centralised social sharing services for more than a decade. Now, we may be about to witness the platforms directly proclaiming the doctrine themselves. This, then, is the new social contract: governments will allow the social media platforms to capture all the behavior data of their citizens (movement, communication patterns, reading, watching and listening preferences, desires and searches) in return for suppressing all information the executive wishes disappeared.
What the users get in return involves undermining of all privacy and integrity rights, by private entities with government licence. We, the users will now be served content that is in the joint interests of the government and the platform companies, with no one to assert our rights. This is how we begin to lose our democratic rights because we do not know how to release ourselves from social media platform companies. We do not have credible alternatives to exercise our rights, yet.
Governments have bought into platforms and will prefer humanity using technology in this freedom-defeating way. The Saudi Arabian monarchy, which in January sentenced an academic to death for statements made on Twitter, is reputed to be the largest investor in Musk’s takeover of Twitter.
Not all countries are quite so flagrant. But if we have reached the point at which people should, for the sake of their freedoms individually and collectively, move their daily lives away from social media platforms, they cannot count on their governments to help them do so.
Users need to take power in their own hands and demand pro-humanity technology from all players. This must be kept in mind as the world, upon this turning point, decides what next.
Eben Moglen is a Professor of Law at Columbia University and Mishi Choudhary is a technology lawyer.
