As the US slowly starts to build up steam to counter the monopolistic power of Big Tech, Europe has leapt ahead with far-reaching and powerful legislation to neuter these out-of-control social media behemoths.
The Digital Services Act was passed in April, and will soon help reign in the surveillance capitalism and anti-competitive behaviour of Google, Facebook, Amazon, Apple and others.
“The new EU standards, and the ethic of transparency on which they are based, will for the first time pull back the curtain on the algorithms that choose what we see and when we see it in our feeds,” wrote Facebook whistleblower Frances Haugen, arguing it will “make social media less toxic for users”.
She argues that “the dryly named Digital Services Act is the most significant piece of social media legislation in history. It goes to the heart of what I’ve tried to do as a whistle-blower who worked inside Facebook: make social media far better without impinging on free speech. Today, Facebook’s poorly implemented content moderation strategies leave those most at risk of real-world violence unprotected and only consistently succeed at one thing: angering everyone”.
The DSA and its very real consequences have got US tech firms worried, as they should be. For decades, they have been immune to prosecution because of a handy piece of legislation – Section 230 of the 1996 Communications Decency Act – which shields such networks from responsibility for what their users’ post or share.
Algo-holics
Last October, Haugen gave testimony to a US Senate subcommittee about the problems with this legal protection and how it has been abused by Facebook, among others. “Modifying Section 230 around content is very complicated because user-generated content is something that companies have less control over. They [Facebook] have 100% control over their algorithms. And Facebook should not get a free pass on choices it makes to prioritise growth, virality and reactiveness, over public safety,” she said.
At the hearings, Senator Richard Blumenthal pointed out the problem: “Right now, [Facebook] has broad immunity. You can’t sue Facebook. You have no recourse.”
Europe’s more aggressive stance is important because the US and its lawmakers have been enthralled by Silicon Valley and its long-since discredited myth of innovation. As numerous court cases and Congressional hearings have demonstrated Google bought its way to its monopoly. “Google’s rise to dominance in display advertising markets began not with its own innovation but with the acquisition of existing companies,” wrote Texas attorney-general Ken Paxton in a lawsuit unsealed earlier this year.
Empty threats?
Facebook hasn’t done anything new and innovative in years – instead, it plagiarises whatever its competitors have done – mostly recently TikTok, Snap and Twitter before that.
But the European Union has no such starry-eyed obsession. Its mandate is to look after its citizens’ rights and it is slowly enforcing them. Facebook recently threatened to withdraw from the EU bloc – a hollow bluff that Brussels is almost certainly going to call. Facebook’s growth is coming from everywhere but the US and established markets; while such a withdrawal would hand these lucrative markets to its competitors – especially Chinese-owned TikTok.
The DSA is a “potential gold standard for online content governance” in the EU, says Asha Allen, the advocacy director for Europe, online expression and civic space for the Centre of Democracy and Technology.
The good news is the “landmark legislation includes some of the most extensive transparency and platform accountability obligations to date. It will give users real control over and insight into the content they engage with, and offer protections from some of the most pervasive and harmful aspects of our online spaces,” she wrote last month.
Building something new
But, she warns there are challenges when it comes to implementation as the “proposed regime is a complex structure” where responsibilities will be shared between the European Commission and national regulators, known as Digital Services Coordinators (DSCs). “It will rely heavily on the creation of new roles, expansion of existing responsibilities, and seamless cooperation across borders. What’s clear is that as of now, there simply isn’t the institutional capacity to enact this legislation effectively.”
She points to problems in supervising these large online platforms “that plague the General Data Protection Regulation (GDPR), such as out-of-sync national regulators and selective enforcement. Insufficient resourcing here is a cause for concern and would ultimately risk turning these hard-won obligations into empty tick-box exercises.”
Haugen also points out that “how the new European law is carried out will be just as important as passing it.” A broad and comprehensive set of rules and standards, it is not unlike food safety standards for cleanliness and allergen labelling. “But what is also remarkable about it is that it focuses on oversight of the design and implementation of systems (like how algorithms behave) rather than determining what is good or bad speech.”
And that is the nub, as always with well-meaning legislation. As Allen argues: “if the DSA is to be the gold standard for online content governance, they must innovate and be bold in their approach”.
This column first appeared on Financial Mail