25 Jan 2021

Under the spotlight: online platforms

Top media lawyer Paul Tweed outlines the thinking behind his long-running campaign to rein in the social media giants

Gateley Tweed partner Paul Tweed has been battling with Facebook and Google for many years as their power and influence over society has dramatically increased. The high-profile lawyer has lobbied government ministers for changes in the law to place the online platforms on the same footing as the international press and broadcasters and has a number of claims pending on behalf of clients who claim they are victims of fake ads, misinformation and online harm. 

GLP:  Facebook and Twitter have argued they are merely a platform as opposed to a publisher, and therefore not liable for the content posted on their sites. Are they justified in maintaining this stance?

Paul Tweed: I have for many years argued that the social media giants should be subject to the same legal and regulatory requirements as the traditional media. The suspension of President Trump's Facebook and Twitter accounts earlier this month merely highlights the fact that in determining who can use their platform, and selectively editing and removing content on an ad hoc basis, they are exercising the same degree of control, and ultimately responsibility, as the press.  Accordingly, just as a newspaper is responsible for the content of a reader's letter published on its pages, the social media companies must accept liability for what they publish on their platforms and be subject to the same legal consequences. The need for a level playing field is all the more urgent in circumstances where Facebook and Google are sucking much needed advertising revenue from the mainstream media, while re-publishing investigation reports without payment.  In this regard, in Australia, Google has taken an aggressive stance against the government rather than agreeing to a fair and equitable payment structure for news reports. Facebook has been equally beligerent, threatening to remove news from its feed for all Australian users.

GLP: There are fears in the EU about the safefy of European data held in the US. Is this justified?

PT: Facebook for one is doing everything it can to move its users' data to what it would regard as a safe haven of the United States. In 2018 it began moving African data and it is only the Irish Data Commissioner who stands in the way of wholesale relocation of European data across the Atlantic. This is currently the subject of legal proceedings in the High Court in Dublin, while the transatlantic Privacy Shield comes under increasing scrutiny and challenge. In the meantime, Facebook has adopted a similarly aggressive stance towards any government or other interference, in this case with an implied threat that Irish jobs may be put at risk. 

GLP: Is legislation promised by European and UK policymakers to curb the worst excesses of social media likely to come to fruition?

PT: While any legislation on curbing online harm would be welcomed, my concern is that the absence of robust sanctions that could cause these multi-billion dollar companies to take proactive steps, will not act as a deterrent. Furthermore, none of the proposed statutory intervention makes reference to dealing with the proliferation of misinformation which has had a seriously negative impact in the course of the current pandemic, and is also being increasingly utilised by political and business rivals to undermine their targets with the intention of encouraging international and banking sanctions against the individual concerned.

GLP: Facebook and Twitter have always argued that they can only do so much to monitor and curtail the billions of postings across the globe. Do they have a point here?

PT: My answer to that is quite simple. These multi-billion dollar companies have been set up to profit from their users' data and content. If they do not have them already, they have the financial power to invest in algorithms and if necessary manual monitors to deal with these extremely serious issues which they are continuing to facilitate and profit from, directly or indirectly. If they cannot do so, then this supports the argument for antitrust intervention which is currently being mooted in the United States, which is also considering the repeal of Section 230 of the Communications Decency Act which has been a shield of protection for the online giants on that side of the Atlantic. 

GLP: Do you see a solution to these problems on the horizon?

PT: There is a reason why Facebook and Google are desperately attempting to shift their users' data to the United States, while Google, with its ownership of YouTube, prefers to operate behind one of its US corporate entities.  Depending on whether President Biden's new administration moves to repeal or substantially amend Section 230, and whether the legislation proposed by European governments has sufficient teeth, we may just be in time to prevent a situation where George Orwell's 'Big Brother' in his novel 1984 becomes an alarming reality in the year 2024.

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